Commonwealth, Aplt. v. Rosario, K.

[J-67A-2022, J-67B-2022 and J-67C-2022] [MO: Dougherty, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 3 WAP 2022

:

Appellant : Appeal from the Order of the

: Superior Court entered September

: 10, 2021 at No. 1271 WDA 2020,

v. : Vacating the Order of the Court of

: Common Pleas of Washington

: County entered August 14, 2020 at

KEITH ROSARIO, : No. CP-63-CR-000223-2015 and

: remanding.

Appellee :

: ARGUED: October 26, 2022

COMMONWEALTH OF PENNSYLVANIA, : No. 4 WAP 2022

:

Appellant : Appeal from the Order of the

: Superior Court entered September

: 10, 2021 at No. 1272 WDA 2020,

v. : Vacating the Order of the Court of

: Common Pleas of Washington

: County entered August 14, 2020 at

KEITH ROSARIO, : No. CP-63-CR-001543-2013 and

: remanding.

Appellee :

: ARGUED: October 26, 2022

COMMONWEALTH OF PENNSYLVANIA, : No. 5 WAP 2022

:

Appellant : Appeal from the Order of the

: Superior Court entered September

: 10, 2021 at No. 1273 WDA 2020,

v. : Vacating the Order of the Court of

: Common Pleas of Washington

: County entered August 14, 2020 at

KEITH ROSARIO, APPELLEE : No. CP-63-CR-001262-2013 and

: remanding.

:

: ARGUED: October 26, 2022

DISSENTING OPINION

JUSTICE MUNDY DECIDED: MAY 16, 2023

Probation is inherently conditional. So long as the conditions are met, probation

allows a defendant the opportunity to rehabilitate outside of incarceration. It is with that

fundamental principle in mind that sentencing judges carefully balance the gravity of the

offense, the protection of the public, and the rehabilitative needs of the defendant before

imposing probation and deciding the conditions that define the probationary sentence.1

When a defendant violates a condition of probation, that balance is changed. And so, to

account for that change, a court may increase conditions of probation, impose sanctions,

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

probation.” 42 Pa.C.S. § 9771(b).

This case asks us to interpret Section 9771(b) to determine when a sentencing

court may revoke probation. Because the very existence of a probationary sentence is

conditional, I believe it is clear that a defendant must comply with those conditions to be

entitled to serve a probationary sentence. Therefore, if a defendant violates a condition

of probation before his probationary period has begun, the plain statutory requirements

of Section 9771(b) have been met and the court may revoke probation.

I start, as the majority does, with the plain language of the statute at issue. The

statute governing revocation of probation states:

(b) Revocation.—The court may increase the conditions, impose a brief

sanction under section 9771.1 (relating to court-imposed sanctions for

violating probation) or revoke an order of probation upon proof of the

violation of specified conditions of probation.

1 In determining a sentence, “the court shall follow the general principle that the sentence

imposed should call for total confinement that is consistent with section 9725 (relating to

total confinement) and the protection of the public, the gravity of the offense as it relates

to the impact on the life of the victim and on the community, and the rehabilitative needs

of the defendant.” 42 Pa.C.S. § 9721(b).

[J-67A-2022, J-67B-2022 and J-67C-2022] [MO: Dougherty, J.] - 2

42 Pa.C.S. § 9771(b). Subsection (b) goes on to explain the options for resentencing,

but the above cited portion is the operative language for when a court may revoke. As it

plainly reads, the court may revoke after a showing that the defendant violated the

conditions of probation. It is undisputed that a general condition of probation is to lead a

law-abiding life and it is a violation of probation to commit a new crime. Commonwealth

v. Foster, 214 A.3d 1240, 1250 (Pa. 2019) (“[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.”). And so, when Appellee

in today’s case committed a new crime by kidnapping and shooting a man in the back of

the head, he violated the conditions of probation, and the court was permitted to revoke

that probation.2

My fundamental disagreement with the majority stems from its conclusion that the

conditions of probation do not attach until the term specified in the probation order begins.

Maj. Op. at 14 (“only a violation of the probation itself may trigger revocation, not a

violation of the probation order before the probation term has started.”). As described

above, the very existence of a probation order is conditional. A defendant is given the

opportunity to serve his sentence outside of prison so long as he complies with the

conditions of probation. The sentencing judge attaches conditions to the order of

2 The Black’s Law Dictionary Definition of “probation” bolsters my position. The primary

definition of probation is “[a] court-imposed criminal sentence that, subject to stated

conditions, releases a convicted person into the community instead of sending the

criminal to jail or prison, usu. on condition of routinely checking in with a probation officer

over a specified period of time.” Probation, BLACK’S LAW DICTIONARY (11th ed. 2019). The

majority references a secondary definition, which defines “[t]he period of time during

which a sentence of probation is in effect.” Maj. Op. at 15 n.11. However, that secondary

definition makes little sense in the context of conditions in Section 9771. Replacing the

word “probation” with its dictionary definition is only understandable using the primary

definition. Put another way, the conditions of the probation are the conditions of “a court

imposed criminal sentence,” not the conditions of “the period of time during which a

sentence of probation is in effect.”

[J-67A-2022, J-67B-2022 and J-67C-2022] [MO: Dougherty, J.] - 3

probation “as it deems necessary to ensure or assist the defendant in leading a law-

abiding life.” 42 Pa.C.S. § 9754(b). When a defendant commits a new crime, he alters

the balance struck by the sentencing court when it weighed the defendant’s rehabilitative

needs against the need to protect the public and concluded that probation was

appropriate. This is true even if the crime is committed while incarcerated or while on

parole before the probationary term has begun. To suggest, as the majority does, that

the conditions of probation only apply during the term of probation would mean that a

defendant’s rehabilitation and pursuit toward a law-abiding life – the entire purpose of the

order of probation – is meaningless prior to the day the probationary term begins. Instead,

the conditions of probation must attach at the time the order is issued and are not

exclusive to the term of probation.

My view on this matter is not novel. The understanding that a defendant must live

a law-abiding life to be entitled to serve his sentence in public rather than in confinement

has shaped the law and impacted sentencing decisions for decades. “A probation order

is conditional by its very nature.” Commonwealth v. Nicely, 638 A.2d 213, 217 (Pa. 1994)

(emphasis added). In describing the underlying purpose of probation and related policy

considerations, this Court has stated:

[T]he basic objective of probation is to provide a means to achieve

rehabilitation without resorting to incarceration. When it becomes apparent

that the probationary order is not serving this desired end the court’s

discretion to impose a more appropriate sanction should not be fettered.

Initially, when the court decides to impose a probation order it is only after

first balancing the interest of society in protecting against possible future

criminal behavior of the individual with the benefit he would receive by

remaining free from prison. Certainly, society has the right to expect a

prompt hearing when a probationer has allegedly engaged in a course of

criminal activity.

[J-67A-2022, J-67B-2022 and J-67C-2022] [MO: Dougherty, J.] - 4

Commonwealth v. Kates, 305 A.2d 701, 708 (Pa. 1973) (emphasis added).3 The Superior

Court relied on similar foundational principles in Commonwealth v. Wendowski, 420 A.2d

628 (Pa. Super. 1980), when it held over forty years ago that it is possible to violate the

conditions of probation before the probationary term itself begins:

If, at any time before the defendant has completed the maximum period of

probation, or before he has begun service of his probation, he should

commit offenses of such a nature as to demonstrate to the court that he is

unworthy of probation and that the granting of the same would not be in

subservience to the end of justice and the best interests of the public, or the

defendant, the court could revoke or change the order of probation. A

defendant on probation has no contract with the court. He is still a person

convicted of crime, and the expressed intent of the [c]ourt to have him under

probation beginning at a future time does not change his position from the

possession of a privilege to the enjoyment of a right.

Id. at 630 (quoting James v. United States, 140 F.2d 392, 394 (5th Cir. 1944)) (internal

quotations omitted).4

It is with this overarching understanding of the purpose of probation in mind that I

find it apparent the conditions of probation apply broadly to the imposition of a probation

order in general, rather than specifically during the probationary term. Furthermore,

consideration of the related statutes governing orders and conditions of probation in pari

materia supports my position. Section 9754 is titled “Order of Probation” and states:

3 The majority criticizes my reference to Nicely and Kates, as those cases did not concern

revocation of probation before the start of the probationary term and Kates predated

section 9771. Maj. Op. at 19-20. While it is obvious that these cases do not directly

decide today’s issue, they are nevertheless important in understanding the foundational

legal principles underlying probation. My core position is that the majority’s decision today

cannot be reconciled with the fundamental objective and purpose of probation.

4As discussed below, and recognized by the majority, “there was widespread reliance on

Wendowski and its progeny for many years up until the recent [Commonwealth v.

Simmons, 262 A.3d 512 (Pa. Super. 2021) (en banc)] decision, and the abrogation of

anticipatory revocation represents a significant change in sentencing practice[.]” Maj. Op.

at 29.

[J-67A-2022, J-67B-2022 and J-67C-2022] [MO: Dougherty, J.] - 5

(b) Conditions generally. — The court shall attach reasonable conditions

authorized by section 9763 (relating to conditions of probation) as it deems

necessary to ensure or assist the defendant in leading a law-abiding life.

42 Pa.C.S. § 9754(b). Relatedly, section 9763 is titled “Conditions of probation” and

states: “The court may attach any of the following conditions upon the defendant as it

deems necessary.” 42 Pa.C.S. § 9763(b). The majority suggests that “[t]hese statutes

concern what conditions may be imposed on probation . . . not when these conditions

apply.” Maj. Op. at 22. I respectfully disagree. These statutes make clear that the

conditions of probation are not limited to the probationary term. Conditions are attached

“upon defendant” (section 9763(b)) and are applied at the time the court imposes the

order of probation (section 9754(b)). The core purpose of the conditions is to “ensure or

assist the defendant in leading a law-abiding life.” 42 Pa.C.S. § 9754(b). The requirement

to lead a law-abiding life is a prerequisite to the very existence of an order of probation.

Nothing about these statutes or probation generally suggest that this requirement is

irrelevant until the day probation begins, yet that is the conclusion reached by the

majority.5

5 The only support the majority provides for its position is the suggestion that “[h]ad the

legislature intended a violation of the conditions of the order or probation to be sufficient

for revocation, it would have said so, and the pertinent language of subsection (b) would

instead permit revocation upon proof of the violation of specified conditions of the order

of probation.” Maj. Op. at 14 (emphasis in original). However, the legislature could have

just as easily had the revocation statute require proof of the violation of specified

conditions while on probation. As the statute exists, there is no qualifying language to

the word “probation,” suggesting that the conditions relate to probation broadly, and not

limited to the term of probation. Nevertheless, as explained supra, the related statutes

governing orders and conditions of probation make clear that the conditions are not

exclusive to the probationary term.

The majority also suggests that “for many defendants, like Rosario, who are sentenced

to a term of imprisonment followed by a consecutive period of probation, it would be

impossible to comply straight away upon sentencing with all of the conditions noted in

section 9783(b),” such as attending a rehabilitative facility or other intermediate

punishment program. Maj. Op. at 22. Certainly, it is not a violation of probation to fail to

comply with an impossible condition. This is true even during the term of probation, for

[J-67A-2022, J-67B-2022 and J-67C-2022] [MO: Dougherty, J.] - 6

Thus, because the statute allows revocation “upon proof of the violation of

specified conditions of probation” and a violation can occur even before the probationary

term has begun, I believe that the plain language of the statute permits the practice of

revocation of probation prior to the start of the probationary term. I reach this conclusion

fully recognizing that revocation is not listed as an action the court can take “at any time”

according to the statute. 42 Pa.C.S. § 9771(a) (“The court has inherent power to at any

time terminate continued supervision, lessen the conditions upon which an order of

probation has been imposed or increase the conditions under which an order of probation

has been imposed upon a finding that a person presents an identifiable threat to public

safety.”). The majority concludes that “[t]he implication of this omission is that revocation

cannot be ordered at any time but rather is subject to temporal limitations, i.e., revocation

is permissible solely during the term of the probation itself.” Maj. Op. at 13-14. I find the

majority’s reliance on implication unnecessary, as the plain language of the statute itself

clearly reveals that revocation can occur at any time following a hearing. Section 9771(d)

states:

(d) Hearing required. — There shall be no revocation or increase of

conditions of sentence under this section except after a hearing at which

the court shall consider the record of the sentencing proceeding together

with evidence of the conduct of the defendant while on probation. Probation

may be eliminated or the term decreased without a hearing.

example if upon release from incarceration there is no space available to attend a

rehabilitative facility. That does not make all other possible conditions, especially the

general condition to lead a law abiding life, a nullity until every condition is possible.

Under the majority’s logic, if it is a condition to participate in a particular treatment or

education program, a defendant does not need to begin such a program until the

probationary period begins even if it is available while incarcerated.

[J-67A-2022, J-67B-2022 and J-67C-2022] [MO: Dougherty, J.] - 7

42 Pa.C.S. § 9771(d). And so, the reason revocation cannot occur “at any time” is not a

temporal limitation, but the hearing requirement.6 I also recognize that the statute states

that during such hearing the court “shall consider . . . evidence of the conduct of the

defendant while on probation.” Id. Yet, unlike the majority, I do not believe this language

is restrictive. The statute does not prevent the court from considering the conduct of the

defendant prior to the term of probation. And so, subsection (d) does not foreclose

revocation prior to the start of the probationary term, there is simply no “conduct of the

defendant while on probation” for the court to consider at that time. Id.7

Although I find the plain language of the statute permits a court to revoke probation

prior to the start of the probationary term, any ambiguity as to the legislative intent is

wholly resolved by legislative acquiescence. The Superior Court decided Wendowski in

1980. Since that time, anticipatory revocation has become a prevalent practice that has

6 The majority attempts to rebut my conclusion by suggesting that “inclusion in section

9771(d)’s hearing requirement does not dictate exclusion from [actions that can occur at

any time under] section 9771(a),” as exemplified by the fact that an increase in conditions

is included within both subsections. Maj. Op. at 14 n.10. However, an important statutory

qualification is that an increase may only occur “at any time . . . upon a finding that a

person presents an identifiable threat to public safety.” 42 Pa.C.S. § 9771(a) (emphasis

added). Thus, only when a person presents an identifiable threat may a court increase

the conditions of probation “at any time” under subsection (a), whereas any other increase

in conditions must occur after a hearing under subsection (d). See, 1 Pa.C.S. § 1933

(Particular controls general). Following the majority’s logic, an increase in conditions is

included in subsection (a) because it is not temporally limited, and yet an increase in

conditions also requires a hearing, which the majority deems is temporally limited and

must occur during the probationary term. This is inherently inconsistent.

7 Similarly, the majority relies on the sentencing portion of section 9771(b), which states,

“[u]pon 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.” As with the requirements of subsection (d), when

a defendant violates the terms of probation prior to the start of the probationary period,

the court simply must consider the fact that the defendant spent no time serving the order

of probation when deciding the appropriate revocation sentence.

[J-67A-2022, J-67B-2022 and J-67C-2022] [MO: Dougherty, J.] - 8

provided flexibility to sentencing decisions for decades.8 As the majority recognizes, the

legislature has renumbered and amended section 9771 several times in the last forty

years but has never made any material changes to the statute. Maj. Op. at 25. Our rules

of statutory construction call for the presumption that “when a court of last resort has

construed the language used in a statute, the General Assembly in subsequent statutes

on the same subject matter intends the same construction to be placed upon such

language.” 1 Pa.C.S. § 1922(4). Importantly, “notwithstanding the clear import of §

1922(4) that it applies only where this Court has furnished a construction, this Court has

recognized the extension in principle of § 1922(4)’s presumption to cases decided by the

Superior Court.” Commonwealth v. Dickson, 918 A.2d 95, 107 (Pa. 2007), quoting In re

Lock’s Estate, 244 A.2d 677, 682-83 (Pa. 1968) (“It has been held, and rightly so, that

where a decision of the Superior Court construing a statute was never modified by the

Supreme Court, the presumption was that when the legislature subsequently enacted a

8 It is necessary to emphasize the Commonwealth’s recognition that “the term

‘anticipatory revocation of probation’ appears to be almost unique to Pennsylvania law,

and of fairly recent origin.” Appellant’s Brief, at 11. Indeed, the term seems to have first

appeared in an unpublished Superior Court case from 2014. See, Commonwealth v.

Wilson, 891 EDA 2013 (Super. Ct. 2014) (trial court ruled “that Wilson violated his parole

and anticipatorily violated his probation;” holding that “Wilson’s disorderly conduct

conviction constituted both a violation of his parole and the basis for an anticipatory

revocation of probation.”). The term then became more widely used following the

Superior Court’s published decision in Simmons.

The Commonwealth astutely notes that the term is a misnomer, as revocation in this

context is not in “anticipation” of some future wrongdoing. Rather, the probation order

sets forth expectations and conditions of probation, including the general condition to lead

a law-abiding life. Thus, a conviction and subsequent revocation are reactionary actions

to the defendant’s commission of a new crime, not anticipatory ones. While I find the

term problematic for this reason, it has nevertheless become used and relied upon in

many cases, including this one. Thus, for sake of brevity and consistency, I use the term

“anticipatory revocation” insofar as it means the revocation of a probationary order based

on a defendant’s misconduct that occurred prior to the start of the probationary term.

[J-67A-2022, J-67B-2022 and J-67C-2022] [MO: Dougherty, J.] - 9

similar statute dealing with the same subject matter, the legislature intended the same

construction to be placed on the language of the subsequent statute.”)).

The majority dismisses this presumption, emphasizing that the statutory language

is the most trustworthy source for interpreting legislative intent. Maj. Op. at 25-26. I agree

that the plain language of the statute controls. However, assuming arguendo that the

language of the statute is ambiguous, I cannot imagine a more definitive example of

legislative acquiescence than here. For decades, trial courts have revoked probation

when a defendant made clear that probation would not serve its rehabilitative purpose by

committing a new crime before the probationary term had begun. The Superior Court

followed Wendowski and consistently affirmed countless instances of anticipatory

revocation in the years that followed. See Commonwealth v. Dickens, 475 A.2d 141, 144

(Pa. Super. 1984) (“The fact that appellant had not commenced serving probation when

the new offense occurred did not prevent the court from revoking its prior order placing

appellant on probation. . . . If the new offense is committed at any time before the

maximum period of probation has been completed, probation may be revoked.”);

Commonwealth v. Miller, 516 A.2d 1263, 1265 (Pa. Super. 1986) (“If a probationer’s

criminal conduct, even if committed prior to commencement of the probationary period,

discloses that probation will not be in the best interests of the public or the defendant, a

court may revoke . . . The commission of a new crime violates an implied condition of

probation and suggests that the defendant is a poor probation risk.”), appeal denied, 528

A.2d 956 (Pa. 1987); Commonwealth v. Ware, 737 A.2d 251, 253 (Pa. Super. 1999)

(“[T]he court had the authority to revoke appellant’s probation despite the fact that, at the

time of revocation of probation, appellant had not yet begun to serve the probationary

portion of her split sentence and even though the offense upon which revocation of

probation was based occurred during the parole period and not the probationary period.”),

[J-67A-2022, J-67B-2022 and J-67C-2022] [MO: Dougherty, J.] - 10

appeal denied, 747 A.2d 900 (Pa. 1999); Commonwealth v. Castro, 856 A.2d 178, 180

n.1 (Pa. Super. 2004) (“Appellant was found in violation of his parole, which he was

serving at the time of his arrest, and in anticipatory violation of his probation, which had

not yet begun to run. Such a finding is proper[.]”); Commonwealth v. Allshouse, 33 A.3d

31, 39 (Pa. Super. 2011) (“Appellant’s probation was revoked prior to its commencement

on the basis that Appellant was a danger to society and, therefore, unworthy of

probation.”).

Given the prevalence and wide acceptance in the courts for over forty years

permitting revocation prior to the start of the probationary term it seems exceedingly

unlikely that the legislature was either unaware of the practice or uninterested in

correcting decades of improper revocation. Instead, I would presume, as our rules of

statutory interpretation advise, that the General Assembly has not materially changed

section 9771 because Wendowski and its progeny comport with the legislative intent of

the statute – that revocation prior to the start of the probationary term is permissible.

I also agree with the Commonwealth that it is an absurd result to suggest that a

defendant could commit a new crime with impunity – as far as the status of his probation

is concerned – until the day he is actually serving the probationary period. Brief for

Appellant at 29 (quoting Wright v. United States, 315 A.2d 839, 842 (D.C. App. 1974);

see also 1 Pa.C.S. § 1922(1) (“[T]he General Assembly does not intend a result that is

absurd, impossible of execution or unreasonable.”). The majority posits that this is not

an issue, because a defendant who commits a new crime while on parole is subject to

revocation of his parole in addition to separate punishment for his new offense. Maj. Op.

at 27. However, this entirely ignores the need to rectify the true problem that, by

committing a new crime, the defendant has shown a probationary term is not a sufficient

method of rehabilitation. Put another way, the majority’s interpretation means that a

[J-67A-2022, J-67B-2022 and J-67C-2022] [MO: Dougherty, J.] - 11

sentencing court has no method of correcting its sentence after a defendant acts in a way

that wholly alters the underlying balance between his rehabilitation and the protection of

the public upon which the probationary sentence was premised. Given the purpose of

probation and its inherently conditional nature explained above, I believe such a result is

absurd and unreasonable.9

Further, I disagree with the majority’s analysis of statutes in pari materia. See 1

Pa.C.S. § 1932. The statute concerning sentencing generally states that a court may

impose a sentence of probation “consecutively or concurrently[.]” 42 Pa.C.S. § 9721(a).

Additionally, the statute governing orders of probation requires the court to “specify at the

time of sentencing the length of any term during which the defendant is to be

supervised[.]” 42 Pa.C.S. § 9754(a). The majority suggests that revocation of a

consecutive probation sentence before its term begins runs contrary to these related

statutes because “the probation sentence is effectively both concurrent and consecutive,

in contravention of the plain language of section 9721(a).” Maj. Op. at 18 (emphasis in

original). The majority also suggests that anticipatory revocation “effectively lengthens

the term of probation beyond the fixed term specified at sentencing.” Id. However, these

arguments are premised upon the majority’s conclusion that the conditions of probation

9 I recognize that in certain circumstances, such as here, there is little practical effect to

revocation of probation, as the nature of the offense that established the violation of

probation is so serious and the sentence so lengthy that it is unlikely the defendant will

ever serve the underlying probation anyway. However, it is easy to envision when the

practical implications of anticipatory revocation will be exceedingly important, if not

necessary, in order to uphold the purpose of probation and protect the public. For

example, under the majority’s interpretation, a defendant can assault a corrections officer

or fellow inmate while incarcerated without tarnishing his ability to serve a consecutive

probationary sentence, despite clearly exhibiting he is not leading a law-abiding life and

continues to be a danger to society. Similarly, a defendant convicted of stalking could go

directly to his victim’s home the day he is released on parole with no repercussions to a

future probationary term. According to the majority, those hypothetical defendants did

not violate the conditions of their probation. That is an unreasonable conclusion that I

cannot join.

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do not attach until the probationary term has begun. As I explained fully above, the

statutes governing orders and conditions of probation make clear that the majority’s

conclusion on that matter is incorrect, as the conditions are attached to the order of

probation and defendant generally, not the term of probation. 42 Pa.C.S. § 9754(b); 42

Pa.C.S. § 9763(b). Viewing probation as fundamentally conditional, nothing about

anticipatory revocation improperly lengthens a consecutive term of probation. The

probationary term is fixed and gives a defendant the opportunity to serve his sentence

outside of incarceration during that specified length of time, but the existence of that

privilege is conditioned upon leading a law-abiding life.

I also disagree with the invocation of the rule of lenity. As the majority aptly

recognizes, “the rule applies if at the end of the process of construing what [the legislature]

has expressed, there is a grievous ambiguity or uncertainty in the statute.” Shaw v. United

States, 580 U.S. 63, 71 (2016) (internal quotations and citations omitted, emphasis

added). The rule of lenity “provides a means of assuring fairness to persons subject to

the law by requiring penal statutes to give clear and unequivocal warning in language that

people generally would understand, as to what actions would expose them to liability for

penalties and what the penalties would be.” Sawnick, Inc. v. Philadelphia Parking

Authority, 34 A.3d 926, 932 (Cmwlth. Ct. 2012) (quoting Commonwealth v. Reaser, 851

A.2d 144, 149 (Pa. Super. 2004)). The rule is unnecessary until “the end” of the statutory

interpretation process. Shaw, supra. The revocation statute gives clear warning to

probationers that the court may revoke “upon proof of the violation of specified conditions

of the probation.” 42 Pa.C.S. § 9771(b). As explained above, I do not believe the

legislative intent regarding the revocation statute is so hopelessly ambiguous that it is

necessary to resort to the rule of lenity.

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Based on the foregoing, I believe it is clear that probation is fundamentally

conditional, such that a defendant violates the conditions of his probation when he

commits a new crime at any point after probation is imposed and before the conclusion

of the probationary term. With that in mind, I find revocation prior to the start of the

probationary term wholly permissible because the plain language of the statute allows a

court to revoke “upon proof of the violation of specified conditions of probation.” 42

Pa.C.S. § 9771(b). Any ambiguity is resolved by decades of legislative acquiescence to

the practice and the fact that the opposite conclusion reached by the majority runs

contrary to the fundamental purposes of probation. Accordingly, I dissent.

Justice Brobson joins this dissenting opinion.

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