[J-6-2019] [MO: Donohue, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

DARNELL FOSTER,

Appellant

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No. 21 EAP 2018

Appeal from the Judgment of Superior 

Court entered on January 3, 2018 at 

No. 3572 EDA 2016 affirming the 

Judgment of Sentence entered on 

October 27, 2016 in the Court of 

Common Pleas, Philadelphia County, 

Criminal Division at No. CP-51-CR0005272-2015.

ARGUED: March 5, 2019

CONCURRING OPINION

JUSTICE TODD DECIDED: August 20, 2019

Appellant’s postings are the antithesis of those of an individual who has reflected 

on his past wrongs, is eschewing criminal conduct, and is striving to lead a law-abiding 

life. In fact, they demonstrate an utter disdain for the criminal justice system and flout the 

authority of the trial judge. Nevertheless, in light of the plain and unambiguous statutory 

language of the Sentencing Code, as cogently analyzed by the majority, I am constrained 

to agree that Appellant is entitled to relief. I therefore join the Majority Opinion.

Probation, by its nature, is a form of lenity in criminal sentencing. Commonwealth 

v. Hall, 80 A.3d 1204, 1216 (Pa. 2013). Sentencing judges have broad discretion in 

imposing reasonable conditions of probation designed to serve rehabilitative goals, 

including the “recognition of wrongdoing, deterrence of future criminal conduct, and 

encouragement of future law-abiding conduct.” Id. at 1215. In essence, probation is the 

penal system’s attempt to provide one convicted of a crime an opportunity to change his 
[J-6-2019] [MO: Donohue, J.] - 2

or her ways for the better and to become a productive member of society outside of 

incarceration.

While on probation, after pleading guilty to possessing a controlled substance with 

intent to deliver (heroin), Appellant posted various images on his social media accounts,

including, Percocet pills formed to spell “F*CK YOU,” with Appellant’s notation 

“call_me_drama_F*uck you #perklife flatline_nizzy;” a bag of marijuana; Appellant’s ankle 

monitor with the notation “This sh*t is so corny;” a semi-automatic pistol with two wads of 

money; and Appellant’s guilty plea agreement with the caption “Couldn’t [sic] beat the 

case 4 years probation.” Commonwealth’s Brief, Exhibit A. Such postings contrast 

starkly with what would be expected of an individual who has been shown lenity by our 

criminal justice system.

The Sentencing Code, as enacted by the legislature, however, is written in very 

limiting terms: “The 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 law-abiding life.” 42 Pa.C.S. § 9754(b) (emphasis added). Subsection (c), in 

turn, enumerates only 14 discrete conditions. Id. § 9754(c)(1)-(14). Further, the court 

may revoke an order of probation only “upon proof of the violation of specified conditions 

of the prohibition.” Id. § 9771(b). Based upon this clear statutory language, as well as 

the tenet that penal provisions of a statute shall be strictly construed, 1 Pa.C.S. § 

1928(b)(1), Appellant violated no express condition of probation, and there can be no 

inherent, inferential, or implicit conditions of probation that would otherwise prohibit his 

postings.

However, I point out that a sentencing court “may at any time terminate continued 

supervision or lessen or increase the conditions upon which an order of probation has 

been imposed.” 42 Pa.C.S. § 9771(a) (emphasis added). In turn, subsection 9754(c)(13), 
[J-6-2019] [MO: Donohue, J.] - 3

which is written as a broad catchall provision, authorizes imposing “any” other conditions 

of probation that are reasonably related to the convict’s rehabilitation, so long as they are 

not “unduly restrictive” of the convict’s constitutional rights of liberty or conscience. Id. § 

9754(c)(13); Hall, 80 A.3d at 1213. Thus, in my view, particularly when a sentencing 

judge becomes aware of a probationer’s offensive and inappropriate postings, such as 

the ones before us, the judge has the discretion under 42 Pa.C.S. §§ 9771(a) and 

9754(c)(13) to restrict the probationer’s social media postings so as to curtail behavior 

that is manifestly inconsistent with the rehabilitative goals of probation, such as those that 

deny or reject past wrongs, that embrace future criminal behavior, or that contain 

expressions inconsistent with a law-abiding life.

Justice Mundy joins this concurring opinion.