J-S26026-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

HARRY EDWARD HOSLER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 99 MDA 2022

Appeal from the Judgment of Sentence Entered December 13, 2021

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

No(s): CP-54-CR-0002137-2016

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

CONCURRING STATEMENT BY KUNSELMAN, J.: FILED: JUNE 29, 2023

I concur with the Majority but write separately to address a few other 

points. First, I agree with the Majority that Appellant could have been more 

specific in his points of error. Nonetheless, his points of error are discernable. 

His main complaint on appeal is that the trial court acted prematurely by 

revoking his probation before he was convicted on the new charges. He 

claims: 

I found a few matters seemingly judged in a premature manner 

based upon irrelevant opinion. At the time of the revocation 

hearing[,] I was still, very much, fighting my case to which 

spawned my revocation. . . . ] [The trial court revoked] my 

probation solely because I am a “drug dealer.” None of my priors 

support such an outlandish statement nor [were] my open 

charges settled.

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* Former Justice specially assigned to the Superior Court.
J-S26026-22

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Appellant’s Pro Se 1925(b) Statement, 3/24/23, at 2 (unpaginated) (emphasis 

added).

Although Appellant’s point is well taken, his argument fails. We have 

often cautioned trial judges who revoke probation based solely on new charges 

before the resolution of the new charges. If a defendant is ultimately 

acquitted of the new charges, then the revocation sentence cannot stand. 

That is exactly what happened in Commonwealth v. Giliam, 233 A.3d 863 

(Pa. Super. 2020), where the trial court had revoked probation based on new 

charges of which the defendant was ultimately acquitted. This Court held that 

because the defendant's violation of probation was based solely on allegations 

of new criminal charges for which he was later acquitted, ultimately, no 

violation of probation occurred. Consequently, we concluded that his 

probation revocation sentence was void. Id. at 868. In Gilliam we noted 

that “[t]he instant case exemplifies why, as a practical matter, the appellate 

courts have cautioned against proceeding with a probation violation hearing 

before the trial on new charges where, as here, the new charges are the sole 

basis for the alleged probation violation.” Id. at 869 (emphasis added).

Nevertheless, Appellant's argument here fails for two reasons. Even 

though the better practice may have been to wait until resolution of the new 

charges, the trial court was permitted to proceed with the probation revocation 

hearing before the hearing on the new charges; in other words, the court was 

not required to wait on the revocation hearing as Appellant suggests. 
J-S26026-22

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Moreover, here, Appellant ultimately plead guilty to the new charges, so his 

challenge here is moot. 

Second, I agree with the Majority that Appellant waived any argument 

with respect to the discretionary aspects of his sentence. But I note that if it 

were properly preserved, this challenge would also fail. Appellant claims a 

full revocation of probation and imposition of jail time is not warranted 

because he was almost done serving his original 18-month sentence when he 

committed the new charges. “Also I feel a full revocation when, by the time, 

17 1⁄2 months of an 18 month probation to be turned to a 12 to 24 month 

sentence is a bit excessive without a supporting verdict.” Appellant’s Pro Se

1925 (b) Statement, 3/24/23, at 2 (unpaginated). 

Ultimately, there was a supporting conviction on the new charges. And, 

regardless of how far along he was, Appellant was still on probation at the 

time he reoffended. He knew he needed to be “extra careful” during his 

probation time, and he was not. Thus, he is subject to penalties both for his 

new crime and the crime of violating his probation. Trial courts do not give 

special consideration to whether a defendant is “almost done” serving 

probation when he reoffends. 

Thus, I concur with the Majority that Appellant’s probation revocation 

sentence should be affirmed.