J-A08043-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

SHAHNAWAZ M. MATHIAS, JR.,

                            Appellant                No. 876 MDA 2014


             Appeal from the Judgment of Sentence April 21, 2014
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0006753-2005


BEFORE: SHOGAN, WECHT, and STRASSBURGER,* JJ.

CONCURRING MEMORANDUM BY SHOGAN, J.:                   FILED MAY 28, 2015

       I share the concern expressed by the Majority regarding unwritten

York County probation procedures and fully join the Majority Memorandum.1

However, I write separately to address an additional procedural oddity

which, while not affecting the outcome, bears mention.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   While we do not reach the constitutionality of the unwritten rule in York
County, I am compelled to note that such a rule, if enforced, is grossly
irresponsible. The community trusts that probationers are supervised, and a
unilateral and secret edict jeopardizes that trust and the safety of the
community. While admittedly obiter dicta, I am left to question what
responsibility the county would have in a case where a probationer, who is
effectively released from supervision under the unwritten rule, commits a
new crime that could have been prevented through the supervision he or she
was ordered to receive. This hypothetical calls into question any cost-saving
intentions the former president judge and director of probation may have
hoped to achieve.
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       The Commonwealth asserts that Appellant was aware that his

probation was stayed, if not by the unwritten York County Rule, by an order

granting bail.      Commonwealth’s Brief at 9 n.2.       It appears as though

Appellant, in his effort to challenge his sentence of probation, posted bail

while on probation.2 N.T., 9/7/07, at 5-6; N.T., 9/28/07, at 3. Thus, the

record reveals that Appellant was on bail in this matter from September 7,

2007 through July 1, 2009, when the Supreme Court denied allowance of

appeal and the trial court remanded Appellant to the York County

Department of Probation.3 Commonwealth v. Mathias, 980 A.2d 110, 27

MAL 2009 (Pa. 2009); Order, 7/9/09. We are unsure why Appellant would

want bail while serving a sentence of probation, and the reason why the trial
____________________________________________


2
   Bail is typically only contemplated where a sentence of total confinement
is entered. See Pa.R.Crim.P. Rule 521. Here, however, it appears that
while the trial court discussed remanding Appellant into custody, bail was
ordered, and total confinement was not imposed at the instant trial court
docket number. N.T., 9/7/07, at 5-6.
3
    The Pennsylvania Rules of Appellate Procedure provide that:

       Unless bail is revoked, a bail bond shall be valid until the full and
       final disposition of the case, including all avenues of direct
       appeal to the Supreme Court of Pennsylvania.

          Comment: The intent of this rule is to continue the validity
          of the bail bond through all avenues of direct appeal in the
          state courts, but to exclude state post-conviction collateral
          proceedings, federal appeals and post-conviction habeas
          corpus proceedings, or any other collateral attacks.

Pa.R.Crim.P. Rule 534 and comment.




                                           -2-
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court ordered bail under the facts of this case is not clear. What is clear,

however, is that Appellant posted bail and was ostensibly released from the

conditions of his probation for the 663 days between September 7, 2007 and

July 1, 2009.

       Therefore, if Appellant was in fact released from the conditions of

probation, those 663 days may not count toward his maximum probation

sentence of five years. This calculation would result in Appellant completing

his five-year sentence of probation on September 8, 2013. These extra 663

days    do   not,   however,   alter   the   Majority’s   conclusion   that   the

Commonwealth’s March 14, 2014 petition, concerning an alleged probation

violation, was filed after Appellant completed his sentence.       Therefore, I

agree with the Majority that Appellant’s April 21, 2014 judgment of sentence

must be vacated as there was no probation for the trial court to revoke.

       Judge Strassburger joins this concurring memorandum.




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