J-S53013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

KHARYEE SMITH,

                         Appellant                    No. 88 EDA 2017


       Appeal from the Judgment of Sentence Entered March 9, 2015
           In the Court of Common Pleas of Philadelphia County
                        Criminal Division at No(s):
                         CP-51-CR-0003013-2013
                         CP-51-CR-0014979-2013


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                     FILED OCTOBER 31, 2017

      Appellant, Kharyee Smith, appeals from the judgment of sentence of 3

to 6 years’ incarceration, followed by 4 years’ probation, imposed after

terms of probation he was serving in two separate cases were revoked.

Appellant contends, inter alia, that Pa.R.Crim.P. 700 was violated when his

two underlying cases were transferred to a different judge for the

revocation/resentencing hearing. After careful review, we agree. Therefore,

we vacate Appellant’s judgment of sentence in each of his underlying cases,

and remand for new probation violation hearings.

      The currently presiding judge over this matter, the Honorable Glenn B.

Bronson of the Court of Common Pleas of Philadelphia County, summarized

the procedural and factual history of Appellant’s case, as follows:
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           On July 9, 2013, at docket number CP-51-CR-0003013-
     2013, [Appellant] pled guilty to one count of attempted burglary
     (18 Pa.C.S. § 901) in front of the Honorable Angelo Foglietta of
     this Court. Judge Foglietta imposed the negotiated sentence of
     five years reporting probation. On March 19, 2014, at docket
     number CP-51-CR-0014979-2013, [Appellant] pled guilty to one
     count of criminal trespass (18 Pa.C.S. § 3503) and one count
     criminal mischief (18 Pa.C.S. § 3304) in front of the Honorable
     Sierra Thomas-Street of this Court. Judge Thomas-Street
     imposed the negotiated sentence of three to twenty-three
     months incarceration followed by three years of reporting
     probation on the criminal trespass charge with no further penalty
     on the criminal mischief charge. [Appellant’s] guilty plea in front
     of Judge Thomas-Street gave rise to a direct violation of Judge
     Foglietta’s probation and Judge Foglietta subsequently revoked
     [Appellant’s] probation on April 14, 2014, and re-sentenced
     [Appellant] to time served to twelve months[’] incarceration plus
     three years[’] reporting probation.

            On July 15, 2014, [Appellant] was arrested for robbery.
     Because the alleged robbery would be a direct violation of
     [Appellant’s] probation in both of [his prior] cases, violation of
     probation (“VOP”) proceedings were initiated in each case. Both
     of these matters were transferred to [Judge Bronson] under the
     First Judicial District’s Focused Deterrence Program.1 [Judge
     Bronson] held a hearing pursuant to Commonwealth v. Kates,
     305 A.2d 701 (Pa. 1973) [(hereinafter, “Daisy Kates hearing”),]
     on December 17, 2014[,] and found [Appellant] in direct
     violation of his probation in the above cases.2 On March 9, 2015,
     [Judge Bronson] terminated [Appellant’s] parole in his burglary
     case, revoked [Appellant’s] probations, and resentenced
     [Appellant] to an aggregate term of three to six years[’]
     incarceration plus four years[’] reporting probation. [Appellant]
     filed post-sentence motions, which [Judge Bronson] denied on
     July 2, 2015. [Appellant] filed a notice of appeal on July 29,
     2015, which the Superior Court quashed as untimely filed on
     June 16, 2016.3
        1 [The] Focused Deterrence [Program] is a First Judicial
        District program aimed at reducing gun violence arising
        from gang-related activity.
        2 A Daisey Kates hearing is a revocation hearing held
        regarding an alleged “direct violation” of parole or
        probation where the alleged violation is premised upon

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         conduct that is the subject of an open criminal case, and
         the revocation hearing is held prior to [the] defendant’s
         trial on the substantive criminal charges. This procedure
         was first approved by our Supreme Court in … Kates….
         3[Appellant’s] appeal was untimely as [his] post-sentence
         motion did not toll the 30-day appeal period.         See
         Pa.R.Crim.P. 708(E); [Commonwealth v. Smith, Nos.
         2325 EDA 2015, 2327 EDA 2015, unpublished
         memorandum at 5 (Pa. Super. filed June 16, 2016)].

             On September 8, 2016, [Appellant] filed a petition under
      the Post Conviction Relief Act[, 42 Pa.C.S. §§ 9541-9546,]
      seeking reinstatement of his appellate rights nunc pro tunc. On
      December 30, 2016, [Judge Bronson] granted [Appellant’s]
      petition, reinstated [his] appellate rights, and appointed Lauren
      Baraldi, Esquire, to represent [Appellant] on appeal. As [Judge
      Bronson] had previously ordered [Appellant] to file a Statement
      of Errors pursuant to Pa.R.A.P. 1925(b), and as [Appellant]
      complied with this … order, [Judge Bronson] did not order
      [Appellant] to file a new Statement of Errors.

Trial Court Opinion (TCO), 1/6/17, at 1-2.

      Herein, Appellant presents three questions for our review:

      A. Whether Appellant’s right secured under Rule 700 of the
      Pennsylvania Rules of Criminal Procedure were violated when
      supervision of his probation on two cases were transferred over
      Appellant’s objection?

      B. Whether Appellant’s Due Process Rights, secured under the
      5th and 14th Amendments to the United States Constitution and
      Article 1, Section 9 of the Pennsylvania Constitution, were
      violated when the Commonwealth was permitted to choose
      which Judge would preside over Appellant’s Violation of
      Probation Hearing?

      C. Whether Appellant’s Equal Protection Rights, secured under
      the 14th Amendment to the United States Constitution were
      violated when the Commonwealth was permitted to choose
      which Judge would preside over Appellant’s Violation of
      Probation Hearing?

Appellant’s Brief at 1-2.


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J-S53013-17



       We begin by recognizing that,

       [w]hen we consider an appeal from a sentence imposed
       following the revocation of probation, “[o]ur review is limited to
       determining the validity of the probation revocation proceedings
       and the authority of the sentencing court to consider the same
       sentencing alternatives that it had at the time of the initial
       sentencing. 42 Pa.C.S. § 9771(b).” Commonwealth v. Fish,
       752 A.2d 921, 923 (Pa. Super. 2000). Revocation of a probation
       sentence is a matter committed to the sound discretion of the
       trial court, and that court's decision will not be disturbed on
       appeal in the absence of an error of law or an abuse of
       discretion. Commonwealth v. Smith, 447 Pa. Super. 502, 669
       A.2d 1008, 1011 (1996).

Commonwealth v. McNeal, 120 A.3d 313, 322 (Pa. Super. 2015).

       Appellant first contends that Pa.R.Crim.P. 700 was violated when his

cases before Judge Foglietta and Judge Thomas-Street were transferred to

Judge Bronson as part of the Focused Deterrence Program. 1 In support of

his argument, Appellant relies on both the plain language of Rule 700, as

well as this Court’s interpretation of the rule in McNeal. Rule 700 states:

       (A) Except as provided in paragraph (B), the judge who presided
       at the trial or who received the plea of guilty or nolo contendere
       shall impose sentence unless there are extraordinary
       circumstances which preclude the judge's presence. In such
       event, another judge shall be assigned to impose sentence.

       (B) A court may provide by local rule that sentence on a plea of
       guilty or nolo contendere may be imposed by a judge other than
       the judge who received a plea of guilty or nolo contendere. In

____________________________________________


1 We note that Appellant preserved his challenge to the transfer of his cases
by objecting at the probation violation hearing. See Appellant’s Brief at 6
(quoting N.T. Hearing, 10/10/14, at 6-7). Neither the Commonwealth nor
the trial court contend otherwise.



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J-S53013-17


     such event, the defendant must be so notified at the time of
     entering the plea.

Pa.R.Crim.P. 700.

     In McNeal, the appellant’s case was transferred from Judge Trent,

who had presided over McNeal’s guilty plea and sentenced him, to Judge

Wogan, who was assigned to preside over new charges that McNeal had

received while serving the term of probation imposed by Judge Trent.

McNeal’s new charges also formed a basis for revoking his probation.     As

such, during a phone call between Judge Trent and Judge Wogan regarding

an unrelated matter, Judge Wogan offered to preside over McNeal’s

probation violation hearing. Judge Trent accepted Judge Wogan’s offer, and

McNeal’s case was transferred. See McNeil, 120 A.3d at 317-321.

     On appeal, McNeal argued that the transfer violated Rule 700.      We

agreed, holding that Rule 700 requires that the judge who presided at trial,

or received the plea of guilty or nolo contendere, be the same judge who

resentences the defendant following a probation violation hearing. McNeal,

120 A.3d at 323.       The McNeal panel stressed that, “[o]nly upon

‘extraordinary circumstances’ is another judge permitted by the terms of the

rule to impose a sentence” following the revocation of probation.       Id.

(quoting Pa.R.Crim.P. 700(A)).      Because we found no ‘extraordinary

circumstance’ existed to necessitate the transfer of McNeal’s case from

Judge Trent to Judge Wogan, we concluded that McNeal was “entitled to a

new probation violation hearing.” Id. at 324-25.



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       In this case, we initially recognize that Judge Bronson concedes that

under McNeal, the transfer of Appellant’s cases was improper.2 See TCO at

4. Judge Bronson requests that we vacate Appellant’s judgment of sentence

and remand his cases to Judge Foglietta and Judge Thomas-Street for new

probation violation hearings. Id.

       Appellant also argues that his case must be remanded in light of

McNeal. Appellant stresses that “both judges who received [his] pleas were

actively hearing criminal cases” at the time of his probation violation hearing

and, therefore, “those two judges should have presided over the violation

hearing[] absent an ‘extraordinary circumstance[.]’” Appellant’s Brief at 8.

Appellant avers that the sole reason his cases were transferred to Judge

Bronson was his selection for the Focused Deterrence Program, which was

not an ‘extraordinary circumstance’ justifying the transfer.

       We agree.       As Appellant points out, there is very little case law

defining what constitutes an ‘extraordinary circumstance’ under Rule 700.

Id.   In McNeal, we concluded that “[r]andom chance[,]” i.e. Judge Trent’s

happening to call Judge Wogan about an unrelated case, “does not amount

to an extraordinary circumstance.” McNeal, 120 A.3d at 324. In contrast,

in Commonwealth v. Williams, 375 A.2d 155 (Pa. Super. 1977), this

____________________________________________


2 McNeal was filed on July 16, 2015, just 14 days after Judge Bronson
denied Appellant’s post-sentence motion in which Appellant reiterated his
challenge to the transfer of his cases. See Post-Sentence Motion, 3/17/15,
at 1-2 (unnumbered).



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J-S53013-17



Court found that a judge’s suffering a stroke was an ‘extraordinary

circumstance’ permitting the transfer of the appellant’s case to a different

jurist.

          Here, nothing in the record suggests that either Judge Foglietta or

Judge Thomas-Street were unable to handle Appellant’s probation violation

hearings.      Furthermore, we agree with Appellant that his selection for the

Focused Deterrence Program was not an ‘extraordinary circumstance’

justifying the transfer of his cases to Judge Bronson.                 Notably, the

Commonwealth has presented no argument to the contrary.                  Instead, it

essentially concedes that the transfer was improper, but it contends that the

error was harmless because “there is no reason to believe that [Appellant’s]

sentences would have been reduced if his cases had been assigned … to

Judge Foglietta and Judge Thomas-Street[,]” rather than Judge Bronson.

Commonwealth’s         Brief at 16.      The   Commonwealth     also    adds   that,

“[r]emanding for Judge Foglietta and Judge Thomas-Street to re-impose the

sentence would constitute an ineffectual duplication of limited judicial

resources.” Id. at 17.

          We are unpersuaded by the Commonwealth’s harmless error and

judicial economy arguments. As we explained in McNeal,

          [t]he use of the word “shall” in the language of … [R]ule [700]
          evinces Pennsylvania’s general disinclination to permit different
          judges to try and to sentence a defendant. This policy recognizes
          the obvious value of a judge who “is in the best position to view
          a defendant's character, defiance or indifference, and the overall
          effect and nature of the crime. When formulating its order, the
          sentencing court must consider the nature of the criminal and

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J-S53013-17


     the crime.” Commonwealth v. Koren, 435 Pa. Super. 499, 646
     A.2d 1205, 1208 (1994) (internal citations omitted). It is
     axiomatic that the judge who presides over the trial, or who
     accepts a guilty plea based upon a recitation of the facts
     underlying the pleaded-to crime, is the judicial officer best
     equipped to assess the nature of the defendant and the crime
     itself before imposing sentence.

McNeal, 120 A.3d at 323.

     Here, under the rationale of McNeal, Judge Foglietta and Judge

Thomas-Street are unquestionably in the best position to preside over

Appellant’s probation violation hearings.   Thus, the value of having those

two jurists preside over the proceedings outweighs the judicial resources

that remand expends.

     Moreover,     the   Commonwealth’s     harmless    error    argument     is

unconvincing, as it effectively places the burden on Appellant to establish

that his current sentence is harsher than that which he would have received

before Judge Foglietta and Judge Trent. We remind the Commonwealth that

“[t]he burden of establishing that the error was harmless rests upon the

Commonwealth.”     Commonwealth v. Mitchell, 839 A.2d 202, 215 (Pa.

2003) (emphasis added) (citing Commonwealth v. Story, 383 A.2d 155,

162 n.11 (Pa. 1978)).     Additionally, we fail to see how any party could

demonstrate harmless error in this context, as it calls for pure speculation

regarding   what   sentence   a   court   would   impose.       Therefore,   the

Commonwealth’s harmless error argument does not persuade us that

remand is unnecessary.




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J-S53013-17



       Accordingly, under Rule 700 and McNeal, we conclude that Appellant

is entitled to new probation violation hearings before Judge Foglietta and

Judge Thomas-Street. Thus, we vacate his judgment of sentence in each of

his two underlying cases, and remand for those proceedings.3

       Judgments of sentence vacated.            Cases remanded for further

proceedings. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2017




____________________________________________


3  In light of our disposition, we need not address Appellant’s other two
issues.



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