                            [J-6-2019] [MO: Donohue, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                 EASTERN DISTRICT


 COMMONWEALTH OF PENNSYLVANIA,                   :   No. 21 EAP 2018
                                                 :
                       Appellee                  :   Appeal from the Judgment of Superior
                                                 :   Court entered on January 3, 2018 at
                                                 :   No. 3572 EDA 2016 affirming the
               v.                                :   Judgment of Sentence entered on
                                                 :   October 27, 2016 in the Court of
                                                 :   Common Pleas, Philadelphia County,
 DARNELL FOSTER,                                 :   Criminal Division at No. CP-51-CR-
                                                 :   0005272-2015.
                       Appellant                 :
                                                 :   ARGUED: March 5, 2019


                                   CONCURRING OPINION


JUSTICE TODD                                              DECIDED: August 20, 2019
       Appellant’s postings are the antithesis of those of an individual who has reflected

on his past wrongs, is eschewing criminal conduct, and is striving to lead a law-abiding

life. In fact, they demonstrate an utter disdain for the criminal justice system and flout the

authority of the trial judge. Nevertheless, in light of the plain and unambiguous statutory

language of the Sentencing Code, as cogently analyzed by the majority, I am constrained

to agree that Appellant is entitled to relief. I therefore join the Majority Opinion.

       Probation, by its nature, is a form of lenity in criminal sentencing. Commonwealth

v. Hall, 80 A.3d 1204, 1216 (Pa. 2013). Sentencing judges have broad discretion in

imposing reasonable conditions of probation designed to serve rehabilitative goals,

including the “recognition of wrongdoing, deterrence of future criminal conduct, and

encouragement of future law-abiding conduct.” Id. at 1215. In essence, probation is the

penal system’s attempt to provide one convicted of a crime an opportunity to change his
or her ways for the better and to become a productive member of society outside of

incarceration.

       While on probation, after pleading guilty to possessing a controlled substance with

intent to deliver (heroin), Appellant posted various images on his social media accounts,

including, Percocet pills formed to spell “F*CK YOU,” with Appellant’s notation

“call_me_drama_F*uck you #perklife flatline_nizzy;” a bag of marijuana; Appellant’s ankle

monitor with the notation “This sh*t is so corny;” a semi-automatic pistol with two wads of

money; and Appellant’s guilty plea agreement with the caption “Couldn’t [sic] beat the

case 4 years probation.” Commonwealth’s Brief, Exhibit A. Such postings contrast

starkly with what would be expected of an individual who has been shown lenity by our

criminal justice system.

       The Sentencing Code, as enacted by the legislature, however, is written in very

limiting terms: “The court shall attach such of the reasonable conditions authorized by

subsection (c) of this section as it deems necessary to insure or assist the defendant in

leading a law-abiding life.” 42 Pa.C.S. § 9754(b) (emphasis added). Subsection (c), in

turn, enumerates only 14 discrete conditions. Id. § 9754(c)(1)-(14). Further, the court

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

of the prohibition.” Id. § 9771(b). Based upon this clear statutory language, as well as

the tenet that penal provisions of a statute shall be strictly construed, 1 Pa.C.S. §

1928(b)(1), Appellant violated no express condition of probation, and there can be no

inherent, inferential, or implicit conditions of probation that would otherwise prohibit his

postings.

       However, I point out that a sentencing court “may at any time terminate continued

supervision or lessen or increase the conditions upon which an order of probation has

been imposed.” 42 Pa.C.S. § 9771(a) (emphasis added). In turn, subsection 9754(c)(13),




                             [J-6-2019] [MO: Donohue, J.] - 2
which is written as a broad catchall provision, authorizes imposing “any” other conditions

of probation that are reasonably related to the convict’s rehabilitation, so long as they are

not “unduly restrictive” of the convict’s constitutional rights of liberty or conscience. Id. §

9754(c)(13); Hall, 80 A.3d at 1213. Thus, in my view, particularly when a sentencing

judge becomes aware of a probationer’s offensive and inappropriate postings, such as

the ones before us, the judge has the discretion under 42 Pa.C.S. §§ 9771(a) and

9754(c)(13) to restrict the probationer’s social media postings so as to curtail behavior

that is manifestly inconsistent with the rehabilitative goals of probation, such as those that

deny or reject past wrongs, that embrace future criminal behavior, or that contain

expressions inconsistent with a law-abiding life.

       Justice Mundy joins this concurring opinion.




                              [J-6-2019] [MO: Donohue, J.] - 3
