J-S47006-23 

 2024 PA Super 230 

 

COMMONWEALTH OF PENNSYLVANIA 

 Appellant 

 v. 

BRIANNA MAY SMITH 

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 IN THE SUPERIOR COURT OF 

 PENNSYLVANIA 

 No. 1195 EDA 2023 

Appeal from the Order Entered April 4, 2023 

In the Court of Common Pleas of Monroe County 

Criminal Division at No: CP-45-CR-0002074-2017 

BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*

OPINION BY STABILE, J.: FILED OCTOBER 1, 2024

 The Commonwealth appeals from the April 3, 2023, order dismissing its 

petition for violation of special probation. Upon review, we vacate and remand 

for proceedings consistent with this opinion. 

 On January 3, 2018, Appellee, Brianna May Smith, pleaded guilty to one 

count of possession with intent to deliver (“PWID”). She was sentenced to a 

period of two years of special probation, to be supervised by the Pennsylvania 

State Board of Probation and Parole (“the Board”). See Order, 3/20/18. On 

February 27, 2023, the Commonwealth filed a Petition for Violation of Special 

Probation and asserted that Appellee committed technical violations of her 

conditions of special probation. Appellee filed a motion to dismiss the 

Commonwealth’s petition, citing Commonwealth v. Foster, 214 A.3d 1240 

(Pa. 2019), for the proposition that she cannot be found to have violated 

____________________________________________ 

*

 Former Justice specially assigned to the Superior Court. 
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conditions of probation that were not imposed at the time of sentencing. See

Motion to Dismiss, 2/27/23, at 2 (unpaginated). 

After a hearing, the trial court granted Appellee’s motion and dismissed 

the Commonwealth’s petition for a probation violation. N.T., 4/3/23, at 28. 

This appeal followed. Both the Commonwealth and the trial court have 

complied with Pa.R.A.P. 1925(a). 

 On appeal, the Commonwealth raises two issues for our review: 

A. Whether the trial court committed an error of law when it failed 

to acknowledge that the requirement that a special probationer 

follow the general conditions of special probation, contained in 

the 37 Pa. Code § 65.1 which is a separate regulatory 

requirement beyond a trial court’s statutory authority to 

impose conditions of probation which includes abstaining from 

unlawful possession or use of narcotics and/or controlled 

substances? 

B. Whether the trial court committed an error of law in its 

application of Commonwealth v. Foster, 214 A.3d 1240 (Pa. 

2019) as it relates to [Appellee] who was sentenced prior to 

Foster on March 20, 2018 and who while on special probation 

violated her probation by illegally ingesting a controlled 

substance? 

Commonwealth’s Brief at 4. As these issues are related, we address them 

together. 

Revocation of a probation sentence is a matter within the sound 

discretion of the trial court and will not be disturbed absent an error of law or 

an abuse of discretion. Commonwealth v. Shires, 240 A.3d 974, 977 (Pa. 

Super. 2020). The Commonwealth contends that the trial court erred “by 

failing to recognize the regulatory provisions for special probationers set forth 
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in 37 Pa. Code § 65.1 which provide [Appellee] with notice of her requirements 

of supervision.” Commonwealth’s Brief at 9. Amicus, the Department of 

Corrections (“DOC”), argues that it has the power to supervise offenders 

placed on probation by a trial court pursuant to Act 59 of 2021.1 Amicus Brief 

at 6. The DOC maintains that “by the imposition of special probation by the 

Department of Corrections, both [Appellee] and her defense attorney were 

informed of all of the general conditions of special probation as it is statutory.” 

Commonwealth’s Brief at 14. We agree. 

We begin our analysis with the law regarding the imposition of probation 

by the trial court. An order of probation is among the sentencing alternatives 

available to a court at time of sentencing. See 42 Pa.C.S.A. § 9721. In 

imposing a probationary sentence, the trial court is required to “specify the 

length of any term during which the defendant is to be supervised . . . and 

the authority that shall conduct the supervision.” 42 Pa.C.S.A. § 9754(a).2 

In addition, at the time of Appellee’s sentencing, the trial court was 

empowered to attach reasonable conditions as authorized by law as it 

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1

 Previously, the authority was with the Pennsylvania Board of Probation and 

Parole. See 61 Pa.C.S.A. § 6133 (effective October 13, 2009; repealed June 

30, 2021). That authority transferred to the Department of Corrections 

pursuant to Act 59 of 2021. See 61 Pa.C.S.A. § 6172. The statutory language 

of Section 6172 is substantially similar to Section 6133. 

2

 Section 9754, effective June 30, 1988, was amended on December 18, 2019. 

As stated, Appellee was sentenced prior to the 2019 amendment. The 2019 

amendments did not change a court’s duty to specify the length of any term 

during which the defendant is to be supervised and the authority that shall 

conduct the supervision. 
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“deem[ed] necessary to ensure or assist a defendant in leading a law-abiding 

life.” See 42 Pa.C.S.A. § 9754(b).3

 In Commonwealth v. Foster, 214 A.3d 1240 (Pa. 2019), our Supreme 

Court held that the statutory language under Section 9754 must be strictly 

construed to require all specific conditions of probation to be enumerated at 

the time of sentencing. Id. at 1250. The defendant in Foster was sentenced 

to four years of probation. The trial court found Foster violated his probation 

because he was not taking probation seriously and did not attempt to “conform 

to society’s expectations of its citizenry.” Id. at 1244. This Court found that 

the trial court’s decision to revoke Foster’s probation was not an abuse of 

discretion or an error of law. Our Supreme Court disagreed. It found that the 

trial court “disregarded the statutory requirement that a court must first find 

the defendant either committed a new crime or violated a specific condition of 

probation in order to be found in violation.” Id. at 1251. In so holding the 

Court held: 

We find the language of the pertinent statutory provisions to be 

clear and unambiguous. The law provides a general condition of 

probation – that the defendant lead “a law-abiding life,” i.e., that 

the defendant refrain from committing another crime. To [e]nsure 

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3

 In 2024, Section 9754(b) was amended to delete its reference to conditions 

that will “ensure or assist a defendant to lead a law-abiding life.” Section 

9754(b) now only references Section 9763. Section 9763 provides 

enumerated conditions that the trial court may impose that it deems 

necessary and which “provides the least restrictive means available to 

promote the defendant's rehabilitation and protection of the public.” See 42 

Pa.C.S.A. § 9763(b). This change does not affect our analysis of the issues 

presently before this Court. 
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that general condition is met, or to assist the defendant in meeting 

that general condition, the order must also include certain 

“specific conditions” from the list enumerated in section 9754(c). 

Only upon the violation of any of the “specified conditions” in the 

probation order (general or specific) may a court revoke the 

defendant’s probation. In other words, a court may find a 

defendant in violation of probation only if the defendant has 

violated one of the “specific conditions” of probation included in 

the probation order or has committed a new crime. The plain 

language of the statute does not allow for any other result. 

Id. at 1250. Consequently, it vacated the order finding Foster in violation of 

probation and remanded to the trial court for further proceedings. Id. at 

1251, 1254. 

 In Commonwealth v. Elliott, 50 A.3d 1284, 1292 (Pa. 2012), a case 

pre-dating Foster, our Supreme Court analyzed the interplay between the 

Board’s regulatory authority set forth in the Prison and Parole Code, 

specifically 61 Pa.C.S.A. §§ 6131 and 6151, and the trial court’s authority to 

impose a sentence as set forth in 42 Pa.C.S.A. §§ 9751, 9754 and 9771. The 

defendant in Elliott was sentenced to four and a half to nine years 

imprisonment, followed by a consecutive five years of probation. Id. at 1285. 

Elliott was adjudicated a sexually violent predator (“SVP”) and the trial court 

imposed three specific conditions of probation: (1) sex offender registration; 

(2) no contact, direct or indirect, with the victims; and (3) no unsupervised 

contact with any minor child. Id. Due to Elliott’s SVP status, the trial court 

requested that the Board supervise him as a special probationer4 upon his 

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4

 "The board shall have exclusive power to supervise any person placed on 

probation by any judge of a court having criminal jurisdiction, when the court 

by special order directs supervision by the board." 61 Pa.C.S.A. § 6133(a). 
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release from prison. Id. He ultimately was provided, and signed, standard 

special conditions for sex offenders provided by the Board. Id. at 1286. 

The trial court found Elliott violated his conditions of probation, namely 

no contact with victims and not being allowed within 1,000 feet of areas where 

minors are likely to be present. Id. at 1287. This Court found that the Board’s 

condition that Elliott was prohibited from contacting minors was incorporated 

into the trial court’s condition that he refrain from contact with minors. Id. at 

1288. However, this Court found that the Board’s condition that prohibited 

Elliott from being within 1,000 feet of minors was not incorporated into the 

trial court’s general no-contact requirement. Id. at 1288-89. Our Supreme 

Court disagreed and found that the condition prohibiting Elliott from being 

within 1,000 feet of minors was “derivative of the trial court’s condition of 

probation that [Elliott] not have unsupervised contact with minors.” Id. at 

1292. In reaching its conclusion the Supreme Court explained: 

[T]he Board and its agents may impose conditions of 

supervision that are germane to, elaborate on, or interpret 

any conditions of probation that are imposed by the trial 

court. This interpretation gives meaning to all of the statutory 

provisions relevant to this case and thus: (1) maintains the 

sentencing authority solely with a trial court; (2) permits the 

Board and its agents to evaluate probationers on a one-on-one 

basis to effectuate supervisions; (3) sustains the ability of the 

Board to impose conditions of supervision; and (4) authorizes that 

a probationer may be detained, arrested, and “violated” for failing 

to comply with either a condition of probation or conditions of 

supervision. In summary, a trial court may impose 

conditions of probation in a generalized manner, and the 

Board or its agents may impose more specific conditions of 

supervision pertaining to that probation, so long as those 
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supervision conditions are in furtherance of the trial court’s 

conditions of probation. 

Commonwealth v. Elliott, 50 A.3d 1284, 1292 (Pa. 2012) (emphasis 

added).5 

Foster and Elliott pertain to the general principles that govern a trial 

court’s imposition of probation, the need for a trial court to identify any 

conditions of probation, and the Board’s authority to impose conditions of 

supervision that are germane to, elaborate on, or interpret any conditions of 

probation that are imposed by the trial court.6 “[A] probationer may be 

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5

 At the time Elliott was decided, Section 6131 permitted the Board to create 

uniform standards for the supervision of offenders. 61 Pa.C.S.A. § 6131 

(effective October 13, 2009 to February 17, 2020). That authority has moved 

to the DOC. See 61 Pa.C.S.A. § 6171(a)(11)(ii) (effective June 30, 2021). 

Likewise, Section 6151 defined “conditions of supervision” as “[a]ny terms or 

conditions of the offender’s supervision, whether imposed by the court, the 

board or an agent, including compliance with all requirements of Federal, 

State and local law.” 61 Pa.C.S.A. § 6151 (effective October 13, 2009; 

repealed June 29, 2021). That definition has moved to Section 6101 and now 

states: “[a]ny terms or conditions of the offender’s supervision, whether 

imposed by the court, the department or an agent, or promulgated by the 

board as a regulation, including compliance with all requirements of Federal, 

State and local law.” 61 Pa.C.S.A. § 6101 (effective June 30, 2021). 

Section 9771 governs modification or revocation of probation and states that 

a court may increase the conditions of or revoke an order of probation “upon 

proof of the violation of specified conditions of the probation.” 42 Pa.C.S.A. § 

9771(b). 

6

 Although the defendant in Elliott was placed on special probation, the 

condition alleged to have been violated was not among the enumerated special 

conditions imposed by operation of law under 37 Pa. Code § 65.4. The 

condition alleged to have been violated was a specific condition of probation 

imposed by the trial court. 
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detained, arrested, and violated for failing to comply with either a condition of 

probation or a condition of supervision,” as long as the condition of supervision 

does not exceed the Board's authority to impose it. Id. 

Foster and Elliott however are distinguishable from the present case. 

Here, the trial court ordered special probation. “Special probation” is a type 

of probation authorized by statute. See note 4, supra. When ordered by a 

trial court, the DOC has “exclusive power to supervise any offender placed on 

probation by any judge of a court having criminal jurisdiction when the court, 

by special order, consistent with the regulations of the [DOC], directs 

supervision by the [DOC].” 61 Pa.C.S.A. § 6172.7 When placed on special 

probation, a special probationer is subject to the following general conditions 

of special probation or parole, to wit: 

A special probationer or parolee is subject to the following 

conditions: 

(1) Be under the supervision of a district office or suboffice and 

not leave that district without prior written permission of the 

parole supervision staff. 

(2) Obtain the written permission of the parole supervision staff 

before changing his residence. 

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7

 “Acceptance of a case for supervision or presentence investigation from a 

county which, on December 31, 1985, maintained adult probation offices and 

parole systems, is at the Board’s discretion.” 37 Pa. Code § 65.1. The amicus 

DOC has represented that currently, all counties, except for Mercer and 

Venango, have adult probation and parole systems. Amicus Brief at 10, n.4. 

Consistent with applicable regulations, DOC has represented it “will ordinarily 

accept a case for supervision if it is a felony conviction and a sentence to serve 

a probationary term of at least two (2) years.” Id. at 6 (citing 37 Pa. Code § 

65.1). 
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(3) Maintain regular contact with the parole supervision staff 

by: 

(i) Reporting regularly as instructed and following written 

instructions of the Board or the parole supervising staff. 

(ii) Notifying the parole supervision staff within 72 hours of 

one of the following: 

(A) Arrest. 

(B) Receipt of a summons or citation for an offense 

punishable by imprisonment upon conviction. 

(iii) Notifying the parole supervising staff within 72 hours 

of a change in status including, but not limited to 

employment, on the job training and education. 

(4) Comply with municipal, county, State and Federal criminal 

statutes, as well as the Vehicle Code and the Liquor Code 

(47 P.S. §§ 1-101—9-902). 

(5) Additionally: 

(i) Abstain from the unlawful possession or sale, of 

narcotics and dangerous drugs and abstain from 

the use of controlled substances within the 

meaning of the Controlled Substance, Drug, 

Device and Cosmetic Act (35 P.S. §§ 780[.]101—

780.144) without a valid prescription. 

(ii) Refrain from owning or possessing firearms or other 

weapons. 

(iii) Refrain from assaultive behavior. 

(6) Pay fines, costs and restitution imposed by the sentencing 

court in accordance with the instructions contained in the 

Conditions Governing Special Probation/Parole form. 

37 Pa. Code § 65.4 (emphasis added). The Board has explained that "special 

probation" is a type of probation imposed by a court having criminal 
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jurisdiction which, by special order, directs the Board, pursuant to the Prisons 

and Parole Code, 61 Pa.C.S.A. § 6133, to supervise the offender.8 Coulter v. 

Pennsylvania Bd. of Probation and Parole, 48 A. 3d 516, 517 n3 (Pa. 

Cmwlth. 2012). In a "special probation" case, the criminal jurisdiction retains 

probation revocation authority. Id. "Agents are in a supervisory relationship 

with their offenders. The purpose of the supervision is to assist the offenders 

in their rehabilitation and re-assimilation into the community and to protect 

the public." Id.9 (citing 61 Pa.C.S.A. § 6153 (effective October 13, 2009; 

repealed and replaced by 61 Pa.C.S.A. § 6182(a), effective June 30, 2021)). 

In this case, while the trial court did not impose any conditions of 

probation at the time of Appellee’s sentence, it did expressly sentence 

Appellee to special probation. Its order provides as follows: 

[I]t is the sentence of this [c]ourt that [Appellee] be placed on 

special probation for a period of two (2) years to be supervised 

by the Pennsylvania State Board of Probation and Parole. 

The Clerk of Courts is DIRECTED to forward a copy of this 

conviction to the Department of Transportation for license 

suspension pursuant . . . Title 75 1532(4)(c). 

[Appellee] is entitled to time credit of one day. 

This sentence shall run consecutive to that imposed in Case No. 

2375 Criminal 2017. 

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8

 As previously stated, the authority was transferred to the DOC. See note 1, 

supra. 

9

 By comparison, probationers subject to “unsupervised probation” are not 

subject to direct supervision, but still must comply with rules set by the court. 
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N.T., Sentencing 3/20/18, at 11. 

An order of special probation falls outside the general rule that a 

probationer may only be found to have violated a specific condition of 

probation if that condition is expressly made a part of the court’s probation 

order. Rather, conditions of special probation under Section 65.4 are 

mandatory. Properly enacted regulations have the force and effect of law. 

See Eastwood Nursing v. Department of Public Welfare, 910 A.2d 134, 

141 (Pa. Cmwlth. 2006). Under Section 6172(a), the DOC has exclusive 

power to supervise special probationers consistent with regulations of the 

DOC. DOC regulations expressly require that all special probationers abstain 

from the unlawful possession or sale, of narcotics, dangerous drugs, and 

controlled substances without a valid prescription. See 37 Pa. Code § 

65.4(5)(i). We therefore agree that Appellee was informed of and bound by 

the general conditions of special probation by operation of law simply by the 

imposition of special probation in the court’s sentencing order. 

 Our review of the record leaves no doubt that the trial court in fact 

intended the mandatory conditions of special probation to be a part of its 

probation order. The trial court acknowledged that the conditions set forth in 

Section 65.4 apply by law when it signed the Request for Special 

Probation/Parole Supervision on March 11, 2019.10 Appellee was then 

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10 “If the Pennsylvania [Department of Corrections] accepts supervision of this 

case, the above-referenced offender must comply with the General 

(Footnote Continued Next Page) 
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provided a written copy of the Conditions Governing Special Probation/Parole, 

which she signed on March 13, 2019. By signing that document, Appellee 

acknowledged “that I have read, or have had read to me, the foregoing 

conditions of my probation/parole; I fully understand them and agree to follow 

such conditions; and fully understand the penalties involved should I in any 

manner violate them.” See N.T., 4/3/23, Exhibit 3, Conditions Governing 

Special Probation/Parole. The record clearly indicates that Appellee received 

notice of her conditions of special probation and was aware of such conditions 

at the time the alleged violations occurred. 

We therefore conclude the trial court erred in its reliance on Foster in 

finding no violation of special probation upon the basis it believed no specific 

conditions of probation were imposed at the time of Appellee’s sentence. As 

we have explained, the order for special probation carried with it conditions 

mandated by law. Moreover, we observe that the procedural posture of this 

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Conditions of Special Probation or Parole as set forth in 37 Pa. Code § 65.4, 

as well as any Special Conditions of Special Probation or Parole imposed by 

this court. If this Request for Special Probation/Parole Supervision does not 

meet [the Department’s] acceptance criteria as set forth in 37 Pa. Code § 

65.1, or the above-referenced offender is not available for supervision, the 

above-referenced offender’s supervision will remain with [the trial court]. It 

is acknowledged that [the trial court] will place Special Conditions on the 

above-referenced offender that are consistent with the [Department’s] 

supervision practices. To the extent that [the trial court] does not place such 

Special Conditions on the above-referenced offender, [the trial court] 

acknowledges that the responsibility for the above-referenced offender’s 

supervision will remain with or revert or revert to [the trial court], upon 

written notice from the [Department] to [the trial court].” See N.T., 4/3/23, 

Exhibit 1, Request for Special Probation/Parole (emphasis added). 
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case was from the order dismissing of the Commonwealth’s petition for 

violation of special probation. Due to that early dismissal, the trial court had 

not yet conducted Gagnon I and Gagnon II11 hearings relative to the 

Commonwealth’s petition for violation of special probation. Upon remand, 

these procedural formalities first must be complied with before proceeding to 

a revocation hearing. 

 Accordingly, we vacate the April 3, 2023, order dismissing the 

Commonwealth’s petition for violation of special probation and remand for 

proceedings consistent with this opinion. 

 Order vacated. Case remanded for proceedings consistent with this 

opinion. Jurisdiction relinquished. 

Date: 10/1/2024 

____________________________________________ 

11 See Gagnon v. Scarpelli, 411 U.S. 778 (1973); see also 

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

when a probationer is detained based on an alleged probation violation, due 

process requires a Gagnon I hearing to determine whether there is probable 

cause that probationer committed a violation, followed by a second more 

comprehensive Gagnon II hearing wherein the trial court determines 

whether to revoke probationer’s probation.)