PA Supreme Court: Posting Photos of Drugs, Guns, and Money on Social Media May Not Be a Probation Violation

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Foster, holding that a criminal defendant may not be found in violation of probation without a proper finding by the trial court that the defendant violated a specific condition of probation. In this case, the violation of probation was based solely on the defendant’s decision to post photos of guns, drugs, and money on social media. Because the Commonwealth did not introduce any evidence that the defendant was actually in possession of the contraband or that the terms of probation specifically prohibited from posting these types of things on social media, the Supreme Court held that the defendant should not have been found to have violated his probation.

The Facts of Foster

In Foster, the defendant pleaded guilty to Possession with the Intent to Deliver of a controlled substance. He received a sentence of four years’ probation. Shortly after he started his probation, he posted photos on his social media accounts which depicted guns, drugs, and large amounts of money. The photos also included his sentencing sheet from the PWID case. The defendant’s probation officer detained him, and the trial court held a hearing on whether the defendant had violated his probation despite the fact that he had not been convicted of any new crimes and had been reporting, testing negative for drugs, and seeking employment as required.

The trial court found the defendant in violation of his probation and sentenced him to 11.5 – 23 months’ incarceration followed by a new period of probation. At the hearing, the Commonwealth essentially produced only the photographs that the defendant had posted on social media. The photographs did not show the defendant actually in possession of the drugs, money, or guns. The Commonwealth argued that he was using his social media account “as an ad agency to sell drugs” and that he was continuing to engage in illegal activity. The prosecutor further argued that the photos showed that he had no respect for the court or for probation and that he should be sentenced to a period of incarceration.

The defendant responded by admitting that the accounts in question were his, but he asserted that he had merely downloaded the photographs from the internet and re-posted them in order to show off for friends. He denied that he had ever been in possession of any contraband since starting his probation. The Commonwealth did not introduce any evidence to rebut the defendant’s position. Essentially, the defense argued that the defendant should have been smarter in terms of what he posted on the internet, but he had not violated the terms of his probation merely by showing off for friends on social media because nothing in the law governing probation or the actual terms of his probation which were provided by the probation department prohibited him from posting on social media. 

The Trial Court’s Ruling 

The trial court accepted the Commonwealth’s position, revoked probation, and sentenced the defendant to jail. The defendant appealed to the Pennsylvania Superior Court, which affirmed the order revoking his probation, and the defendant filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court. The Pennsylvania Supreme Court agreed to accept the case.

Is it a violation of probation to post photos of drugs and guns on social media?

Probably not. On appeal, the Pennsylvania Supreme Court found that the trial court had erred in finding the defendant in violation of his probation because there was no evidence that he had committed a new crime, violated a specific term of his probation, or actually been in possession of contraband. The Commonwealth’s bare assertions that it must have been the defendant holding the contraband in the photographs were not sufficient to prove that he had not in fact downloaded the photos from the internet and simply re-shared them.

The Supreme Court noted that when a trial court places a defendant on probation, the court must specify the length of the term of the probation at the time of sentencing. The court must also identify which conditions of probation the defendant must follow. The law provides a number of potential conditions from which a court may choose. For example, a court may properly require a defendant:

1)    To meet his family responsibilities. 

2)    To devote himself to a specific occupation or employment.

3)    To participate in a public or nonprofit community service program unless the defendant was convicted of murder, rape, aggravated assault, arson, theft by extortion, terroristic threats, robbery or kidnapping.

4)    To undergo available medical or psychiatric treatment and to enter and remain in a specified institution, when required for that purpose.

5)    To pursue a prescribed secular course of study or vocational training.

6)    To attend or reside in a facility established for the instruction, recreation, or residence of persons on probation.

7)    To refrain from frequenting unlawful or disreputable places or consorting with disreputable persons.

8)    To have in his possession no firearm or dangerous weapon unless granted written permission.

9)    To make restitution of the fruits for his crime or to make reparations, in an amount he can afford to pay, for the loss or damage caused thereby.

10)  To remain within the jurisdiction of the court and to notify the court or the probation officer of any change in his address or his employment. 

11)  To report as directed to the court or the probation officer and to permit the probation officer to visit his home.

12)  To pay such fine as has been imposed.

13)  To participate in drug or alcohol treatment programs.

14)  To satisfy any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience.

15)  To remain within the premises of his residence during the hours designated by the court.

Further, the statute provides when a court may find a defendant in revocation. It provides: 

“The court may revoke an order of probation upon proof of the violation of specified conditions of the probation. Upon revocation the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing, due consideration being given to the time spent serving the order of probation.”

The Pennsylvania Supreme Court’s Ruling 

Here, the Supreme Court ultimately agreed with the defense on appeal that the defendant had not violated a specific term of probation. Nothing in the statute or the orders which the probation department had actually given him dictated that he could not post photos of drugs and guns on the internet. Therefore, the Court reversed the order finding the defendant in violation of his probation, vacated the jail sentence, and remanded the case back to the trial court.

It is important to note that in this case, the Commonwealth could not actually prove that the defendant possessed the guns, drugs, or cash, and the rules did not specifically prohibit him from posting these types of photos. If the Commonwealth had been able to show that he did have those things in his possession, then the Commonwealth may have been successful in proving a probation violation even if it did not proceed against the defendant on new charges. Likewise, it may be possible for probation to prohibit a defendant from engaging in this type of behavior in the future, although such rules could raise free speech concerns. Therefore, it is extremely important for a probationer to closely review the rules of probation or parole at the beginning of the supervision period and to seek experienced criminal defense counsel in the event of a potential violation.

Facing criminal charges? We can help. 

Philadelphia Criminal Defense Attorneys

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey at trial and on appeal. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, VUFA, PWID, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545to speak with an experienced and understanding defense attorney today.

Getting Arrested Is Not a Probation Violation in PA

Philadelphia Criminal Lawyer Zak Goldstein

Is Getting Arrested a Probation Violation? 

The Superior Court has just decided the case of Commonwealth v. Moriarty, finding that violation of probation counsel was ineffective in failing to challenge the trial court’s finding that the defendant violated his probation solely by incurring an arrest on new charges. Moriarty involved the appeal of a Post-Conviction Relief Act (“PCRA”) Petition. 

Commonwealth v. Moriarty

In Moriarty, the defendant first pleaded guilty to Recklessly Endangering Another Person and Resisting Arrest. Pursuant to the negotiations, the trial court sentenced the defendant to one to twenty-three months and twenty nine days of incarceration on the REAP charge and one year of consecutive probation on the Resisting Arrest charge. The court then immediately paroled the defendant, thereby releasing him from custody. The terms of the probation and parole provided that he would commit a violation thereof by committing any other crimes. 

Daisy Kates Motions

The defendant was subsequently arrested on a new case and charged with Aggravated Assault and Terroristic Threats. The defendant’s back judge immediately lodged a probation detainer and appointed a defense attorney to represent the defendant. The Commonwealth, likely fearing it would not be able to prove its case beyond a reasonable doubt, filed a motion to revoke probation prior to the resolution of the defendant’s new Aggravated Assault case. This type of motion is called a “Daisy Kates” motion. A Daisy Kates motion asks the back judge to find the defendant in violation even though the defendant has not yet been convicted in the new case.

The constitutionality of these motions is currently debatable in light of the recent Pennsylvania Supreme Court case of Commonwealth v. Arter, but the defense failed to raise that issue in this case. The burden of proof in these types of probation hearings is lower than the beyond a reasonable doubt standard of a criminal trial. Instead, the Commonwealth must show that the defendant committed the crimes charged only by a preponderance of the evidence, which is a much lower standard. It is not uncommon for prosecutors to proceed in this manner when they have concerns that they may not be able to obtain a conviction at trial. These hearings are outrageously unfair both because the burden of proof is lower and the judge who will rule on the defendant’s guilt knows that the defendant has committed crimes previously and is on probation. Thus, the judge is already prejudiced against the defendant prior to hearing the evidence because the defendant was on the judge’s probation at the time that the defendant picked up the new case. 

The probation court scheduled a Daisy Kates hearing while the new charges were still pending against the defendant. At the hearing, the defendant’s back judge asked defense counsel if he wished to say anything on behalf of the defendant. Counsel responded that he had consulted with his client and the probation department and that he agreed with the actions that would be taken. In other words, counsel agreed that the defendant should be found in violation of his probation and parole. The judge asked the defendant if he acknowledged the violations of his probation or parole, and defense counsel interjected that the violations were that he had been arrested on new charges. The defendant agreed, so the court found him in violation of his probation and parole and sentenced him to his back time followed by an additional year of probation on the Resisting Arrest charge.

Ineffective Assistance of Counsel

Of course, the defendant was eventually acquitted in the new Aggravated Assault and Terroristic Threats case which served as the basis for the supposed probation violation. The defendant promptly filed motions seeking immediate parole, reconsideration of his sentence, and a Post-Conviction Relief Act Petition alleging that probation counsel had been ineffective in failing to challenge the alleged probation violation. The court granted the motion for immediate parole but denied the other motions, including the PCRA Petition. The defendant appealed.

The Appeal

On appeal, the Superior Court found that probation counsel had in fact provided ineffective assistance of counsel in failing to challenge the alleged probation violation. Counsel was ineffective because the Commonwealth proved only that the defendant had been arrested on new charges and waived the preliminary hearing on those charges.

In order to win a PCRA based on the ineffective assistance of counsel, a petitioner must show that counsel was ineffective, counsel lacked a reasonable, strategic basis for the actions taken in the representation, and that the petitioner was prejudiced due to the counsel’s failures. Here, the Superior Court concluded that counsel was ineffective in failing to challenge the probation violation.

An Arrest Is Not a Probation Violation

First, the Superior Court noted that an arrest, standing alone, does not constitute a probation or parole violation under Pennsylvania law. This is true even where a defendant waives the preliminary hearing as a preliminary hearing does not end in a finding of guilt. Instead, the Commonwealth must introduce at least some evidence beyond the mere arrest and waiver of a preliminary hearing to show that a violation of probation occurred. Typically, the Commonwealth must call at least some live witnesses to show that the defendant committed a crime. Here, the Commonwealth did not introduce any other evidence, so counsel was ineffective in conceding a probation violation based on an arrest alone.

Second, the Court held that the defense lawyer had no reasonable, strategic basis for failing to challenge the violation. Although defense counsel testified that he had recommended conceding the violation so that the defendant would be sentenced and thereby become eligible for work release, it actually turned out that the defendant was not eligible for work release under the general terms of work release enacted by the County Prison. Thus, the defendant gained nothing other than a 23 month jail sentence by failing to fight the alleged probation violation.

Third, the Court held that the defendant was prejudiced because he was sentenced to jail. Had the defendant asked the trial court to defer the probation violation hearing until the new case was resolved or challenged the Commonwealth’s ability to prove that he committed a crime, the defendant may have been released without any additional sentence. Notably, the Court suggested that it is preferable that probation violation hearings not take place until new charges are resolved because of the possibility that a defendant could be found in violation at a Daisy Kates hearing for committing a crime for which the defendant will later be acquitted at trial.

Given that the defendant established all three prongs of the test, the Superior Court granted the PCRA and vacated the trial court’s order revoking probation and re-sentencing him. The Superior Court went further and found that the defendant did not violate his probation. Therefore, it ordered the trial court to re-instate the original sentence and provide the defendant with time credit towards that sentence for the time spent in custody.

Award-Winning Philadelphia Probation Violation Lawyers

Philadelphia Criminal Defense Attorneys

If you or a loved one are facing a potential probation violation or probation detainer, we can help. In many cases, it may be possible to have the detainer lifted pending the resolution of a new case or to seek alternatives to incarceration for established violations of probation. Our Philadelphia criminal defense attorneys have successfully helped thousands of clients navigate Gagnon I and Gagnon II probation hearings. We are also able to provide sueprior We offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding advocate today.

Hearsay Is Not Ordinarily Admissible at a Violation of Probation Hearing

Commonwealth v. Godson - Is Hearsay Admissible During a Probation Violation Hearing?

Criminal Defense Lawyer Zak T. Goldstein, Esq.

The Pennsylvania Superior Court has decided the case of Commonwealth v. Godson, reaffirming prior holdings in which the courts have held that hearsay is not ordinarily admissible at a violation of probation hearing. In Godson, which is an unpublished opinion, the Court recognized the general rule in Pennsylvania that in order for hearsay to be admissible at a violation of probation or Gagnon II hearing, the Commonwealth must show "good cause." 

In Godson, the defendant originally entered a guilty plea to charges of Aggravated Assault by Prisoner. He received a sentence of 6-23 months of incarceration followed by two years of reporting probation. The defendant quickly violated that probation in a number of different ways, including by failing to participate in court-ordered mental health treatment. In response, the probation officer moved to revoke his probation, and the trial court held a violation of probation hearing. 

At the hearing, the court heard from a staff member from the mental health facility at which the defendant had sporadically obtained treatment. The staff member testified that he learned from other staff members that the defendant had been disruptive and attempted to escape from the facility. The defendant broke a window as part of his attempted escape. Although the staff member who testified at the hearing had no personal knowledge of the broken window or attempted escape, the trial judge revoked the defendant's probation, re-sentenced him, and ordered that the defendant pay restitution for the cost of the fixing the broken window. 

The Appeal of the Violation of Probation Sentence 

The defendant appealed, and the Superior Court reversed the restitution order. The Superior Court noted that it is well-settled that the Confrontation Clause of the Pennsylvania Constitution prohibits the use of hearsay testimony against a defendant at a probation hearing without a finding by the trial court of good cause. Here, the parties agreed that the trial judge failed to make any finding with respect to whether there was good cause for allowing the staff member who had no personal knowledge to testify about the broken window and the cost of replacing it. Accordingly, the Superior Court reversed the trial court's order and remanded it for further proceedings.  

The Rule Against Hearsay at a Probation Hearing 

The rule against hearsay at a probation revocation hearing is extremely important. Prosecutors and probation officers in Philadelphia often attempt to introduce hearsay at Gagnon II hearings as it is much simpler and easier for them than actually requiring live witnesses to appear. This is particularly true in cases where defendants are under supervision for convictions relating to domestic violence. In domestic violence cases, it is not uncommon for the problems which led to the defendant's criminal charges to continue even after he or she has been put on probation. In some cases, the complainant from the original case will call the probation officer and make new accusations, and the probation officer will then bring those accusations to the judge without asking the complainant to appear for the hearing. It is fundamentally unfair for a defendant to face a probation violation without having the opportunity to cross-examine the accuser. Therefore, this rule protects the rights of the defendant to challenge the accusations against him or her in open court and makes sure that the judge does not have to make a ruling based entirely on hearsay.

Probation Violation? We Can Help.

Goldstein Mehta LLC Probation Lawyers

If you are facing criminal charges or a potential violation of probation, we can help. We are award-winning Philadelphia criminal defense lawyers with the experience, skill, and expertise necessary to fight for you and protect your rights. We have successfully defended thousands of clients against criminal charges and in dealing with probation violations and probation detainers. Call 267-225-2545 to speak with an experienced and understanding defense attorney today. 

PA Supreme Court: Parole Agents May Frisk You Even If You Are Not On Parole

The Pennsylvania Supreme Court has just decided the case of Commonwealth v. Mathis, holding that a parole agent may detain and frisk a non-parolee visitor to the parolee’s home while performing a routine home inspection if the parole agent acts on reasonable suspicion that the visitor is engaged in criminal activity and armed.

Commonwealth v. Mathis - Can a Parole Agent Search Someone Who Is Not On Parole During a Routine Home Visit? 

In Mathis, parole agents conducted a routine check of a parolee’s home which was located in a high crime area in Dauphin County. When they arrived, they immediately recognized the strong odor of marijuana throughout the home. As they walked through the house, they observed the defendant, Mathis, receiving a hair cut from the parolee who they were there to check up on. The parolee identified the parole agents to the defendant, and the agents then questioned the parolee as to why the house smelled like marijuana. The agents also found an ashtray full of marijuana roaches in the front room, but they did not see anyone smoking marijuana. 

While one of the agents questioned the parolee, the other agent monitored Mathis. Mathis repeatedly got up from his chair and walked to the kitchen, apparently checking text messages on his cell phone. The parole agents asked him to stop using the cell phone while they were there because he seemed nervous. They asked him to leave until they finished speaking with the parolee. Mathis began to leave, and as he gathered his belongings, one of the agents noticed that he picked up his jacket as if holding it up to his body like a football or a baby. Mathis appeared to try to put his body in between the agents and the jacket, and he continued to hold it in a strange manner. The agents also noticed a bulge coming from the jacket which was roughly the size and shape of a gun. 

The agents became concerned for their safety, so they asked Mathis if they could pat him down. He refused, but one of the agents reached out and touched the jacket. The agent immediately felt what he believed to be a firearm. They then handcuffed Mathis, patted him down, recovered a bag of marijuana from between his feet, and recovered a handgun from the jacket. Because Mathis was prohibited from possessing a firearm due to his prior criminal record, the agents called the police. The police arrived, recovered the gun, and charged Mathis with gun charges, marijuana charges, and possessing drug paraphernalia.

Motion to Suppress

Mathis filed a pretrial motion to suppress the gun, arguing that the parole agents had no right to search him because he was not on parole. The trial court denied the motion to suppress, found him guilty of drug possession and gun possession, and sentenced him to thirty-two to sixty-four month’s imprisonment. Mathis appealed, and the Superior Court affirmed.

The Pennsylvania Supreme Court reviewed the case and upheld the decision of the Superior Court. The Court concluded that parole agents may conduct a Terry frisk under these circumstances for their own safety. Although parole agents may not act as police officers with respect to non-offenders or private citizens, they do have the right to protect themselves.

Parole agents are required to supervise offenders in part by conducting routine, unannounced home visits, thus risking exposure to a variety of potentially dangerous unknowns. Interactions with non-offenders are often going to occur during home visits, and parole agents have an obligation to make sure that the parolee is not living or associating with people who have been convicted of certain criminal offenses.

Parole agents are also legally classified as “peace officers,” giving them the power to make a lawful arrest upon reasonable suspicion of a felony and the authority to use deadly force to protect themselves and carry firearms. Because a parole agent has the authority to use deadly force for the protection of himself or herself and others, the agent has the authority to prevent the need for deadly force in the first place by conducting a Terry frisk when necessary.

Finally, the Court noted that the purpose of the Terry frisk is not to conduct an investigation or find evidence; instead, it is merely to check for deadly weapons so that the officer can do his or her job without fear of bodily injury. Accordingly, the Supreme Court concluded that a parole agent may conduct a frisk for weapons so long as the agent has reasonable suspicion to do so. Reasonable suspicion requires “specific and articulable facts” that criminal activity is afoot, and the authority to frisk also requires that the officer or agent have reason to believe that the suspect is armed and dangerous. 

There Are Still Limits On Probation and Parole Searches

Unfortunately, the Mathis Court's decision serves to eliminate important privacy rights for anyone who associates with someone who is on state parole. If someone has the bad luck to be present at a parolee's residence when agents show up to conduct an unannounced search, that person will now be at risk of being searched by parole agents despite the fact that they are not even on parole. This is particuclarly true for anyone who lives with someone who is on state parole; that person will now have substantailly reduced privacy rights just by virtue of who they live with. However, some protections remain in that the parole agents are still required to have reasonable suspicion and cannot conduct a search for general investigatory purposes. Therefore, motions to suppress will likely still be brought in many of these cases.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Attorneys

If you are facing criminal charges, we can help. Our Philadelphia Criminal Defense Lawyers have successfully defended thousands of cases. We offer a free, 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attoreny today.