J-A23024-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RONALD JAMES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1329 EDA 2019

Appeal from the Judgment of Sentence Entered April 5, 2019

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

No(s): CP-51-CR-0007900-2012

BEFORE: KUNSELMAN, J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY NICHOLS, J.: FILED: MARCH 31, 2021

Appellant Ronald James appeals from the judgment of sentence imposed 

following violation-of-probation proceedings. Appellant asserts that the trial 

court erred in revoking his probation based on hearsay police reports. 

Additionally, Appellant requests that this Court vacate the judgment of 

sentence without remanding for further proceedings. The Commonwealth and 

the trial court agree that the revocation decision improperly relied on hearsay 

police reports but assert that a remand for a new hearing is proper. For the 

reasons that follow, we vacate the judgment of sentence and remand this 

matter for further proceedings.

The trial court summarized the procedural background of this appeal as 

follows: 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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Following his January 31, 2014, conviction [for possession with 

intent to deliver a controlled substance (PWID)], Appellant . . . 

was sentenced on March 28, 2014, to concurrent periods of state 

incarceration [of one-and-one-half to two years], followed by four 

years[’] probation on charges of possession of a controlled 

substance with intent to deliver and conspiracy.

On August 24, 2017, Appellant was found in violation of his 

probation and sentenced to new concurrent terms of four years[’] 

probation, along with employment and drug treatment conditions.

On December 5, 2018, Appellant was arrested and charged with 

possession of a controlled substance with intent to deliver and 

possession of a controlled substance, arising from events 

occurring on November 19, 2018 (CP-51-CR-0000607-2019) 

[(the new charges)].

A violation hearing was held on April 5, 2019, at which time 

Appellant was found in violation of his probation,[1] and sentenced 

to concurrent terms of [one to two years’] state incarceration, 

followed by [two years’] reporting probation.

A motion for reconsideration was filed on April 17, 2019. That 

motion was denied on May 2, 2019. 

A timely notice of appeal was filed on May 6, 2019.[2]

On July 29, 2019, an order issued directing the filing of a 

statement pursuant to Pa.R.A.P. 192[5](b). On August 8, 2019, 

Appellant filed a statement pursuant to Pa.R.A.P. 192[5](b).

____________________________________________

1 As discussed below, the Gagnon II summary listed “possible direct 

violations” based on the new charges. See Gagnon II Summary, 3/28/18, 

at 1; see also Gagnon v. Scarpelli, 411 U.S. 778, (1973). Appellant 

objected to the trial court proceeding with the Gagnon II hearing based on 

alleged discovery violations and while trial on the new charges were pending. 

Appellant also objected to the trial court’s consideration of hearsay documents 

and reports. See N.T., 4/5/19, at 4-11, 19. 

2 The thirtieth day after resentencing for Appellant’s violation of probation fell 

on a Sunday, and Appellant filed his notice of appeal on the following Monday. 

See 1 Pa.C.S. § 1908. 
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On October 2, 2019, Appellant filed a supplemental Rule 1925(b) 

statement noting the September 20, 2019, dismissal of [the new 

charges].

Trial Ct. Op., 10/9/19, at 1-2 (footnote omitted).

Appellant presents the following questions for review: 

1. Was there not insufficient evidence to sustain a revocation, and 

were not due process rights violated, where only inadmissible 

hearsay police reports were introduced?

2. Was it not an abuse of discretion and a violation of due process 

rights to sustain a revocation of probation in this case based 

on alleged new criminal conduct where inadequate discovery 

had been provided before the [Commonwealth v. Kates, 305 

A.2d 701 (Pa. 1973) (Daisey Kates)] hearing, only hearsay 

evidence was introduced, and the underlying new criminal 

charges were dismissed after multiple continuances because 

the Commonwealth failed to provide complete discovery?

Appellant’s Brief at 2 (some capitalization omitted). 

We summarize Appellant’s arguments together because they are related 

to his claims that the trial court erred in relying on hearsay reports and that 

a remand is improper. First, Appellant asserts that the trial court improperly 

considered hearsay evidence without finding good cause. Id. at 7. Appellant 

contends that “[b]ecause there was no admissible evidence of probative value 

to sustain the burden to show by a preponderance of the evidence that [he]

violated his probation, this Court should reverse the revocation of probation.” 

Id. at 8. 

Second, Appellant contends that “[i]t would be fundamentally unfair for 

[him] to be subject to a new hearing where there was no admissible probative 

evidence offered to sustain the burden of proof at the revocation hearing in 
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violation of well established law.” Id. at 8 n.2. In support, Appellant cites 

Commonwealth v. Foster, 214 A.3d at 1240 (Pa. 2019), In the Interest 

of Davis, 546 A.2d 1149 (Pa. Super. 1998) (en banc), and Commonwealth 

v. Royster, 572 A.2d 683 (Pa. 1990). Id. Further, Appellant claims that a 

remand is improper because the trial court also abused its discretion when 

holding a Daisey Kates hearing. Id. at 11. Appellant emphasizes the trial 

court’s reliance on hearsay evidence and disregard for his claims that the 

Commonwealth failed to provide him with complete discovery. Id. at 10-11. 

Appellant further notes that the new charges did not result in a conviction 

because the Commonwealth failed to provide adequate discovery and that 

matter was dismissed. Id. at 11-12. From this, Appellant asserts that “the 

[Daisey Kates] revocation here is void” and that the order revoking his 

probation should be vacated without a remand. Id. at 13. 

Neither the Commonwealth nor the trial court dispute the error in 

revoking Appellant’s probation based on police reports alone.3 

____________________________________________

3 Although the trial court asserted that it erred in admitting hearsay without a 

finding of good cause, it concluded that “[t]he matter should be remanded for 

a new violation hearing” without any citation to legal authority. Trial Ct. Op. 

at 3. In addressing Appellant’s claim that the subsequent dismissal of the new 

charges did not preclude further proceedings, the trial court noted that there 

was no record of the disposition of the new charges. Id. at 4 n. 3. In any 

event, the trial court noted that “the termination of the case [on the new 

charges] based on incomplete discovery does not constitute the sort of 

disposition that would create a collateral estoppel bar to considering the 

conduct for the purpose of probation violation.” Id. at 4 (citing 

Commonwealth v. Brown, 469 A.2d 1371 (Pa. 1983)). 
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Commonwealth’s Brief at 7; Trial Ct. Op. at 3. The Commonwealth states that 

it “shares the preferences of this Court and the Supreme Court to defer 

revocation until after trial” on a probationer’s new charges.4 Commonwealth’s

Brief at 4, 10-12. Nevertheless, the Commonwealth asserts that the cases 

and principles cited by Appellant do not support his argument that a remand 

is improper. Id. at 4, 8, 12-13. The Commonwealth emphasizes that the trial 

court’s error was evidentiary in nature, the dismissal of the new charges by 

nolle prosequi does not preclude further proceedings on the violation of 

probation, and that a remand for a new hearing would not conflict with its own 

policies or the principles weighing against “pretrial revocations.” Id. at 12-

14.

Our review of a judgment of sentence imposed upon a violation of 

probation “is limited to determining the validity of the probation revocation 

proceedings and the authority of the sentencing court to consider the same 

sentencing alternatives that it had at the time of the initial to consider the 

same sentencing alternatives that it had at the time of the initial sentencing.” 

Commonwealth v. Giliam, 233 A.3d 863, 866 (Pa. Super. 2020) (citation 

omitted and some formatting altered). 

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4 The Office of the District Attorney of Philadelphia, Lawrence S. Krasner, Esq., 

has expressed similar policy arguments and reservations in cases concerning 

Daisey Kates. Cf. Commonwealth v. Major, 241 A.3d 469, 613 EDA 2018, 

2020 WL 6305915, at *7, n.9 (Pa. Super. filed Oct. 28, 2020) (unpublished 

mem.).
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This Court has summarized the procedures and rights afforded to a 

probationer as follows: 

When a parolee or probationer is detained pending a 

revocation hearing, due process requires a determination at 

a pre-revocation hearing, a Gagnon I hearing, that 

probable cause exists to believe that a violation has been 

committed. . . .

The Gagnon II hearing entails two decisions: first, a 

consideration of whether the facts determined warrant 

revocation. The first step in a Gagnon II revocation 

decision . . . involves a wholly retrospective factual 

question: 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 

rehabilitation? Thus, the Gagnon II hearing is more 

complete than the Gagnon I hearing in affording the 

probationer additional due process safeguards, specifically: 

(a) written notice of the claimed violations of probation or 

parole; (b) disclosure to the probationer or parolee of 

evidence against him; (c) opportunity to be heard in person 

and to present witnesses and documentary evidence; (d) 

the right to confront and cross-examine adverse witnesses 

(unless the hearing officer specifically finds good cause for 

not allowing confrontation); (e) a neutral and detached 

hearing body such as a traditional parole board, members 

of which need not be judicial officers or lawyers; and (f) a 

written statement by the factfinders as to the evidence 

relied on and reasons for revoking probation or parole.

Further, we note that there is a lesser burden of proof in a 

Gagnon II hearing than in a criminal trial . . . . Thus, the 

Commonwealth need only prove a violation of probation by a 

preponderance of the evidence. 
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Commonwealth v. Allshouse, 969 A.2d 1236, 1240-41 (Pa. Super. 2009) 

(citations omitted and some formatting altered). 

In Allshouse, the Commonwealth alleged that the probationer 

committed technical violations of his probation. Id. at 1238. At the Gagnon

II hearing, the Commonwealth had a probation officer read various witness 

statements into the record to demonstrate that the probation violated a nocontact order and failed to maintain good behavior. Id. at 1239. The 

probation officer was not sworn in to testify, and the Commonwealth did not 

present any testimony from the witnesses. Id. The probationer conceded 

that he failed to comply with a probation term that he pay court costs, but 

denied the violations of the no-contact order and failing to maintain good 

behavior. Id. The trial court found the probationer in technical violation, 

revoked his probation, and resentenced him. Id.

On appeal, the Allshouse Court concluded that “all evidence in support 

of [the violations of the no-contact order and good behavior conditions] was 

hearsay” that the trial court admitted into evidence without a finding of good 

cause. Id. at 1243. Moreover, the Court noted that there was no competent 

evidence to rebut the probationer’s accounts and denials of the alleged 

violations. Therefore, this Court determined that the Commonwealth failed to 

establish a violation of probation warranting revocation, vacated the judgment 

of sentence, and remanded the matter for a new hearing. Id. at 1243-44. 

Instantly, we agree with the trial court, Appellant, and the 

Commonwealth that the trial court erred in finding that Appellant violated his 
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probation. See Trial Ct. Op. at 3; Appellant’s Brief at 7; Commonwealth’s 

Brief at 7. Here, as in Allshouse, the trial court revoked Appellant’s probation 

based solely on a review of hearsay reports and documents, which the trial 

court considered without a finding of good cause. Allshouse, 969 A.2d at 

1243-44. Accordingly, we must vacate the judgment of sentence. See id. at 

1244. 

We next consider Appellant’s request to vacate without remanding for 

further proceedings. In Commonwealth v. Mullins, 918 A.2d 82 (Pa. 2007), 

the trial court revoked probation based on its review of a probation officer’s 

hearing summary sheet, which the officer “adopted as his testimony.” 

Mullins, 918 A.2d at 83. This Court concluded that the trial court erred in

revoking probation based on a hearing summary sheet that was entered into 

evidence and where no testimony substantiated the allegations in the report. 

Id. at 83-84. Notably, this Court vacated the judgment of sentence and did 

not remand for a new hearing. Id. Our Supreme Court granted allowance of 

appeal to consider whether this Court “exceeded its authority” by vacating the 

sentence without remanding for a new violation-of-probation hearing. Id. at 

84. 

The Mullins Court concluded that this Court erred by failing to remand, 

noting: 

The potential for a [violation-of-probation] hearing is an integral 

part of the original conditional sentence, the purpose of which is 

to establish to the satisfaction of the court that granted probation, 

that the individual’s conduct warrants continuing him as a 

probationer. Even where the [violation-of-probation] hearing 
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record is insufficient to sustain revocation of probation, this 

purpose should not be frustrated—the court that granted 

probation should not be precluded from determining whether 

probation remains the proper course only because the 

Commonwealth failed to include certain formalities in the record. 

Probation is given by grace, not by right. To hold the Double 

Jeopardy Clause is somehow implicated at a [violation-ofprobation] hearing would elevate something of grace to the status 

of constitutional dimension.

Id. at 86 (citation omitted).

In contrast, in Foster, our Supreme Court reversed a violation-ofprobation sentence and rejected the Commonwealth’s argument that the 

matter should be remanded for a new hearing.5 Foster, 214 A.3d at 1252. 

Our Supreme Court distinguished Mullins, explaining:

Unlike Mullins, the case at bar does not involve a procedural 

anomaly or the disregard of an evidentiary formality. This case 

simply involves the question of whether the evidence and 

information presented before the [violation-of-probation] court 

supports a finding that [the probationer] violated his probation. 

The sole evidence presented by the Commonwealth at the 

[violation-of-probation] hearing was the photographs. The 

photographs depicted alleged marijuana, white pills and an 

alleged gun, the intended implication being that [the probationer]

was in possession of contraband. The Commonwealth made 

extensive argument before the [violation-of-probation] court that 

the items in the photographs belonged to [the probationer], that 

he took the pictures of these items (thus possessing them), and 

that he thus committed a crime. The Commonwealth never 

contended that [the probationer] violated a specific condition of 

his probation; in fact, it expressly concedes that he did not.

____________________________________________

5 The Foster Court did remand that case to the trial court. However, the 

remand was for a calculation of sentencing credit for the time the probationer 

spent in custody for the probation violation the Court reversed. Foster, 214 

A.3d at 1254. 
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The [violation-of-probation] court heard the argument and 

considered the evidence presented, making findings of fact based 

on its assessment of that evidence. As stated hereinabove, the 

[violation-of-probation] court found, based on the evidence 

presented, that [the probationer] violated probation because in 

the court’s view, he was not taking his probation seriously and his 

behavior of posting the pictures on his social media accounts 

(which he admitted) was antisocial and defiant, concluding on that 

basis that probation was not an effective vehicle for his 

rehabilitation. Importantly, the [violation-of-probation] was 

specifically asked to find that [the probationer] committed a 

crime, but it did not.

The Commonwealth does not seek a new evidentiary hearing, it 

simply advocates for the [violation-of-probation] court to have “an 

opportunity to make factual findings under [the] proper legal 

standard.” As our discussion hereinabove reflects, the legal 

standard pursuant to which the [violation-of-probation] court was 

required to make its determination is clear, unambiguous, and has 

always been the law. Moreover, as discussed, Mullins does not 

stand for the proposition that remand is required anytime the 

Commonwealth disagrees with the [violation-of-probation] court’s 

findings. The failure to make the only finding of fact advanced by 

the Commonwealth is a clear rejection of that fact.

Foster, 214 A.3d at 1253 (citations and footnotes omitted).

Instantly, we conclude that the error identified by Appellant is closer to 

the procedural defect in Mullins than the findings in Foster.

6

 Compare 

Foster, 214 A.3d at 1253, with Mullins, 918 A.2d 82. Here, as in Mullins, 

the error arose from the use of reports and documents to find a violation of 

____________________________________________

6 We note Appellant’s reliance on Davis. However, Davis, which was a 

juvenile probation matter, was decided before Mullins and Foster and had 

no discussion of its decision to vacate the revocation of probation without 

remanding the matter. Therefore, the more specific discussions of this Court’s 

authority to remand or withhold remand in Mullins and Foster is controlling.
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probation.7 Moreover, the allegations in the police reports, if proven through 

competent evidence at a proper hearing, could establish that Appellant 

committed new offenses. Unlike Foster, the Commonwealth here seeks a 

new evidentiary hearing to remedy the procedural error. The trial court’s 

findings also do not evince a clear rejection of the Commonwealth’s theory for 

revoking Appellant’s probation. Therefore, we remained bound by the 

instruction in Mullins that this matter must be remanded for further 

proceedings. 

____________________________________________

7 Although Appellant focuses on the trial court’s reliance on the reports and 

documents and possible discovery violations, the record reveals other 

irregularities that occurred at the hearing. Specifically, the Gagnon II 

summary appears to charge only a potential direct violation of probation based 

on Appellant’s arrest for delivery of cocaine. See Gagnon II Summary, 

3/28/18, at 3-4 & Exs. At the April 5, 2019 hearing, it appears that the 

Commonwealth intended to proceed based solely on the report and documents 

as none of the parties, nor the trial court, referred to the presence of any 

witness except for Appellant. See N.T., 4/5/19, at 3-5, 18-19. 

At the hearing, the Commonwealth set forth no arguments regarding the basis 

for the revocation. Id. at 18-19. After accepting the reports and documents 

over Appellant’s objections regarding discovery matters and to hearsay, the 

trial court stated that it found Appellant “in technical violation” of the terms 

of his probation, although the Commonwealth presented no evidence of the 

terms of Appellant’s probation. See id. 18-20. But see Commonwealth’s 

Brief at 2 (indicating that the trial court found Appellant in violation of 

probation based solely on his alleged commission of new crimes). 

We acknowledge these irregularities may push the instant case closer to the 

situation discussed in Foster and add support to Appellant’s general argument 

that it would be fundamentally unfair to remand this matter to allow the 

Commonwealth a “second bite at the apple.” See Appellant’s Brief at 8, n.2. 

However, Appellant does not refer to these apparent irregularities in his brief, 

nor does he use them to support his position not to remand this matter for 

further proceedings. 
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We also acknowledge Appellant’s arguments based on Daisey Kates

and the principles favoring the deferral of a revocation hearing until after trial 

on new charges. See Giliam, 233 A.3d at 869 (noting that “it may be 

‘preferable to defer [ ] hearing until after the trial, thus avoiding 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”’ (citation 

omitted)). In sum, Giliam holds that a violation-of-probation sentence for a 

direct violation “cannot stand” when a probationer is subsequently acquitted 

of new charges. See id.; see also Royster, 572 A.2d at 686 (vacating a 

violation-of-probation sentence for a direct violation based on the trial court’s 

subsequent grant of arrest of judgment following trial on new charges). 

However, here, even accepting Appellant’s argument that the Commonwealth 

was responsible for the dismissal of the new charges based on delays in 

discovery, the dismissal of the new charges does not have the same preclusive 

force as an acquittal. Accordingly, we conclude that Appellant’s contention 

that “the [Daisey Kates] revocation here is void” lacks merit and does not 

bar remand of this matter for further proceedings. 

For these reasons, we conclude that the trial court erred in revoking 

Appellant’s probation based on reports and documents alone. We further 

conclude that despite the procedural errors in this case, remand for further 

proceedings is appropriate.

8

 See Mullins, 918 A.2d at 86. 

____________________________________________

8 Nothing in our decision precludes Appellant from litigating his discovery 

issues in the trial court following remand. 
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Judgment of sentence vacated. Case remanded. Jurisdiction 

relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/31/21