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The Pennsylvania Supreme Court has ruled that probation can only be revoked where there is a violation of a specific term of the probation order, reversing a lower court’s finding that a defendant violated his probation by posting photos of guns, money and drugs on social media.

In Commonwealth v. Foster, the court unanimously ruled to vacate a Superior Court decision that had upheld an 11.5-to-23-month jail sentence, plus seven years’ probation, imposed by a Philadelphia trial judge on defendant Darnell Foster for violating his probation.

The trial court had determined that eight photos Foster posted to Instagram and Facebook—depicting, among other things, guns, wads of cash and drugs—constituted a probation violation because it demonstrated antisocial conduct and a lack of rehabilitation.

In an Aug. 20 majority opinion, Justice Christine Donohue said Section 9771 of the Sentencing Code allows for termination of supervision or modification of the conditions of probation at any time, but provides that probation can only be revoked upon a finding that a specific condition was violated.

“We find the language of the pertinent statutory provisions to be clear and unambiguous,” Donohue said. ”The law provides a general condition of probation⁠—that the defendant lead ’a law-abiding life,’ i.e., that the defendant refrain from committing another crime. To insure that general condition is met, or to assist the defendant in meeting that general condition, the order must also include certain ’specific conditions’ from the list enumerated in Section 9754(c). Only upon the violation of any of the ‘specified conditions’ in the probation order (general or specific) may a court revoke the defendant’s probation.

“In other words,” Donohue continued, “a court may find a defendant in violation of probation only if the defendant has violated one of the ‘specific conditions’ of probation included in the probation order or has committed a new crime. The plain language of the statute does not allow for any other result.”

According to court documents, Foster was arrested in May 2015 and charged with possession with intent to deliver and simple possession of a controlled substance. In July 2015, he entered into a guilty plea to possession with intent to deliver in exchange for a sentence of four years’ probation.

But Foster was detained in August 2016 based on eight photos he posted to Instagram and Facebook, depicting: a nine millimeter gun and $100 bills; a large wad of $100 and $50 bills; the words “fuck you” spelled out in Percocets; a bag of marijuana; another large amount of pills; Foster wearing his house arrest ankle bracelet while fanning several $100 and $50 bills; and Foster’s sentencing sheet noting that he had been placed on “youth violence reduction probation.” In October 2016, Foster was found in violation of his probation and resentenced to 11.5-to-23 months’ incarceration, followed by seven years’ probation.

Foster argued to the Superior Court that he downloaded the images of guns and drugs from the internet in attempt to glorify “gangsta” culture and that revocation of his probation based on social media photos violated his due process and free speech rights under the First Amendment and Article I, Section 7 of the Pennsylvania Constitution.

But Judge Correale Stevens, writing for the Superior Court, said that argument “proceeds from the flawed assumption that his act of posting the images constitutes protected free speech under the United States and Pennsylvania constitutions and that a violation of a specific probationary term directing that he refrain from possessing illegal drugs, when he was on probation for PWID, and/or that he refrain from using social media was necessary to sustain the trial court’s decision.”

But Donohue said both the trial court and the intermediate appellate court ”disregarded the statutory requirement that a court must first find that the defendant either committed a new crime or violated a specific condition of probation in order to be found in violation.”

The justices were unanimous that Foster’s probation should not have been revoked based on his social media posts. The court was split, however, on whether the state should have another opportunity to present evidence at a new probation revocation hearing.

The majority remanded the case solely for a determination as to whether Foster is entitled to credit for time served, but Justice Kevin Dougherty penned a concurring and dissenting opinion, joined by Justice Sallie Updyke Mundy, arguing that the Supreme Court’s 2007 ruling in Commonwealth v. Mullins requires that the matter be sent back to the trial court for a new evidentiary hearing.

“It is simply unfathomable for this court to determine that no conditions of probation have been violated when it has no idea what those conditions are,” Dougherty said. ”It is worse still for the court to do so when it admits the trial court never made any factual findings because it was under the mistaken belief that it could revoke probation on the generalized basis that probation had proven to be an ineffective vehicle to accomplish rehabilitation and not sufficient to deter against future antisocial conduct.”

But the majority said Mullins was not applicable to Foster’s case.

“Unlike Mullins, the case at bar does not involve a procedural anomaly or the disregard of an evidentiary formality,” Donohue said. ”This case simply involves the question of whether the evidence and information presented before the VOP court supports a finding that Foster violated his probation. The sole evidence presented by the commonwealth at the VOP hearing was the photographs. The photographs depicted alleged marijuana, white pills and an alleged gun, the intended implication being that Foster was in possession of contraband. The commonwealth made extensive argument before the VOP court that the items in the photographs belonged to Foster, that he took the pictures of these items (thus possessing them), and that he thus committed a crime. The commonwealth never contended that Foster violated a specific condition of his probation; in fact, it expressly concedes that he did not.”

Justice Debra Todd wrote a concurring opinion, also joined by Mundy, noting that while probation revocation is inappropriate in cases like Foster’s, the trial judge does have discretion to restrict the probationer’s social media activity.

A spokeswoman for the Philadelphia District Attorney’s Office could not be reached for comment on the decision.

Foster’s attorney, Leonard Sosnov of the Defender Association of Philadelphia, said the ruling “appropriately limits discretion to what’s provided by the statutes and, given excessive incarceration problems with respect to revocation of probation and parole, it’s an important limitation.”

Sosnov added that the decision “also signals to the court that, in other areas, it’s vital to pay strict attention to what the legislature has provided.”

(Copies of the 29-page opinion in Commonwealth v. Foster, PICS No. 19-1009, are available at http://at.law.com/PICS.)