J-S33007-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TANIESHA DIAZ 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1928 EDA 2020

Appeal from the Judgment of Sentence Entered September 14, 2020

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0002898-2018

BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 19, 2021

Taniesha Diaz appeals from the aggregate judgment of sentence of 

three to six years of incarceration followed by three years of probation, which 

the trial court imposed after revoking her parole and probation. Based upon 

this Court’s recent decision in Commonwealth v. Simmons, ___ A.3d ___, 

2021 PA Super 166, 2021 WL 3641859 (Pa.Super. Aug. 18, 2021) (en banc), 

we vacate Appellant’s judgment of sentence and remand for the trial court to 

reinstate its April 4, 2019 order of probation and resentence Appellant for her 

parole violation.

On April 4, 2019, Appellant pled guilty to one count each of burglary and 

conspiracy in exchange for concurrent sentences of eleven and one-half to 

twenty-three months of incarceration, with immediate parole to house arrest, 

followed by three years of probation, at each count. On January 9, 2020,
J-S33007-21

- 2 -

while on parole, Appellant tested positive for PCP. At the Gagnon II1 hearing,

Appellant was found to be in violation of her probation and the order of 

probation was revoked. On September 14, 2020, the court imposed 

concurrent terms of three to six years of incarceration followed by three years 

of probation at each count. Appellant filed a motion for reconsideration, 

seeking a sentence in the mitigated range of the guidelines, specifically a 

“mental health inpatient sentence,” because she has remorse, strong family 

relationships, and strong ties to the community. Motion for Re-Consideration 

of Sentence of VOP, 9/16/20, at 3-4. Before the trial court ruled on the postsentence motion, Appellant timely filed the instant appeal.2

 Both Appellant 

and the trial court complied with Pa.R.A.P. 1925.3 

____________________________________________

1 “A Gagnon I hearing is a pre-revocation hearing to determine if probable 

cause exists that a violation was committed. After this determination is made, 

a Gagnon II hearing is conducted where the Commonwealth is required to 

establish that the defendant did violate his parole/probation.” 

Commonwealth v. Stafford, 29 A.3d 800, 802 n.1 (Pa.Super. 2011) 

(cleaned up) (citing Gagnon v. Scarpelli, 411 U.S. 778 (1973)). Instantly, 

Appellant did not order the transcripts of her Gagnon proceedings for 

purposes of this appeal. Accordingly, we rely on the trial court’s opinion for 

the date and disposition of the Gagnon II hearing. See Trial Court Opinion, 

12/10/20, at 2 (“On February 5, 2020, a Gagnon II hearing was held and 

Appellant was found to be in violation of probation and probation was revoked. 

A pre-sentence report and mental health evaluation was ordered.”).

2 Pursuant to Pa.R.Crim.P. 708(E), Appellant’s filing of a post-sentence motion 

did not toll the time for filing an appeal, and Appellant timely and properly 

filed her notice of appeal despite the pendency of the motion.

3 This Court initially dismissed Appellant’s appeal for failure to file a brief, but 

upon application, reinstated the appeal.
J-S33007-21

- 3 -

Appellant raises three issues for our review, which are mooted by our 

application of Simmons, as we must first address the legality of Appellant’s 

revocation sentence. See Simmons, supra at *1 n.3 (noting that challenges 

to an illegal sentence may be raised by this Court sua sponte). As indicated 

hereinabove, the judgment of sentence from which Appellant has appealed 

was imposed following the trial court’s decision to revoke Appellant’s parole 

and probation. Specifically, Appellant was originally sentenced to eleven and 

one-half to twenty-three months of incarceration, with a consecutive order of 

probation to follow the term of incarceration, at each count. The conduct that

served as the basis for the revocation, namely Appellant’s positive test result 

for PCP, was committed during Appellant’s parole. Since her probationary 

term was set to commence on April 24, 2021, the trial court revoked the order 

of probation before the consecutive probationary term had commenced.

We observe that this anticipatory revocation of Appellant’s order of 

probation was permissible at the time the trial court issued its revocation order 

under longstanding precedent established by this Court. Indeed, for more 

than four decades, beginning with this Court’s decision in Commonwealth v. 

Wendowski, 420 A.2d 628, 630 (Pa.Super. 1980), the law of this 

Commonwealth was that, for revocation purposes, a term of probation 

included all time from when probation was granted until the probationary term 

had been fully served. However, in Simmons, supra, an en banc panel of 

this Court overruled Wendowski and its progeny, holding as follows:
J-S33007-21

- 4 -

Simply stated, Wendowski was incorrect in holding that a trial 

court may anticipatorily revoke an order of probation and in 

reasoning that “a term of probation may and should be construed 

for revocation purposes as including the term beginning at the 

time probation is granted.” Wendowski, 420 A.2d at 630 

(quotations omitted). No statutory authority exists to support this 

understanding. Rather, the plain language of the relevant 

statutes provides that: a trial court may only revoke an order of 

probation “upon proof of the violation of specified conditions of 

the probation;” the “specified conditions” of an order of probation 

are attached to, or are a part of, the order of probation; and, when 

the trial court imposes an “order of probation” consecutively to 

another term, the entirety of the “order of probation” – including 

the “specified conditions” – do not begin to commence until the 

prior term ends. 

Simmons, supra at *10. This Court further explained that, pursuant to 

Simmons, a “trial court lack[s] statutory authority to anticipatorily revoke [a 

defendant’s] probation for an alleged ‘technical probation violation’ that 

occurred before [his or her] period of probation began.” Commonwealth v. 

Reavis, 1360 EDA 2018, 2021 WL 3668883, at *1 (Pa.Super. Aug. 18, 2021) 

(en banc) (non-precedential decision). A sentence imposed without statutory

authority is an illegal sentence. See, e.g., Commonwealth v. Finnecy, 249 

A.3d 903, 912 (Pa. 2021). 

 Here, Appellant’s order of probation was revoked because she violated 

the special probation conditions applicable to the not-yet-commenced 

probationary tail of her sentence. However, pursuant to Simmons, Appellant 

was not required to comply with the conditions of probation before she began 

serving that probationary term, and therefore her noncompliance did not 
J-S33007-21

- 5 -

permit the anticipatory revocation of her order of probation.4 Therefore, as 

was the appellant in Simmons, Appellant is entitled to relief in the form of 

having her current judgment of sentence vacated and her April 4, 2019 order 

of probation reinstated.5 See Simmons, supra at *13 (vacating the 

judgment of sentence and remanding with instructions to reinstate the original 

order of probation); Reavis, supra (same).

As a final matter, we note that while the trial court posits in its opinion 

that it only revoked Appellant’s probation, see Trial Court Opinion, 12/10/20, 

at 2 (noting “probation was revoked”), the September 14, 2020 sentencing 

order states Appellant’s “original probation/parole [had] been revoked.” 

Violation of Probation Sentencing, 9/14/20. Insofar as the trial court revoked 

Appellant’s parole and imposed a new sentence, that new sentence was illegal. 

See Simmons, supra at *12; Commonwealth v. Kalichak, 943 A.2d 285, 

290 (Pa.Super. 2008) (“Unlike a probation revocation, a parole revocation 

does not involve the imposition of a new sentence. Indeed, there is no 

authority for a parole-revocation court to impose a new penalty. Rather, the 

only option for a court that decides to revoke parole is to recommit the 

defendant to serve the already-imposed, original sentence.” (cleaned up)). 

____________________________________________

4 The author of this memorandum dissented to this aspect of the Simmons

decision. See Commonwealth v. Simmons, ___ A.3d ___, 2021 PA Super 

166, 2021 WL 3641859 at *19-24 (Pa.Super. Aug. 18, 2021) (en banc) 

(Bowes, J. concurring and dissenting). 

5 Given this disposition, we do not reach the issues raised by Appellant.
J-S33007-21

- 6 -

Accordingly, as with the appellant in Simmons, “since the trial court revoked 

Appellant’s parole and illegally resentenced Appellant to serve a new term of 

incarceration, we must also remand for resentencing.” Simmons, supra at 

*12 (cleaned up).

Judgment of sentence vacated. Case remanded with instructions to 

reinstate the original order of probation and for resentencing. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/19/2021