Jump To

Top Caption [Lead Opinion

                  by Murray](https://www.courtlistener.com/opinion/10826347/com-v-oglesby-s/#o1)

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

March 27, 2026 Get Citation Alerts Download PDF Add Note

Com. v. Oglesby, S.

Superior Court of Pennsylvania

• Citations: 2026 Pa. Super. 62
• Docket Number: 2407 EDA 2024

• Judges: Murray

• Opinion

• Authorities (15)

• Cited By (0)

• Summaries (0)

• Similar Cases (9.7K)

• PDF

Lead Opinion

                        by Murray

J-A20007-25 2026 PA Super 62

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAWN OGLESBY, :
:
Appellant : No. 2407 EDA 2024

Appeal from the Judgment of Sentence Entered August 7, 2024
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003217-2019

BEFORE: MURRAY, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E. *

OPINION BY MURRAY, J.: FILED MARCH 27, 2026

Shawn Oglesby (Appellant) appeals from the judgment of sentence

imposed following the revocation of his probation for a second, technical

violation.1 Appellant claims the violation of probation (VOP) court imposed an

illegal sentence, in contravention of the recent amendments to 42 Pa.C.S.A.

§ 9771(c),2 where the court miscalculated Appellant’s number of technical

probation violations for purposes of applying section 9771(c). Because

Appellant’s sentence of one to three years’ incarceration exceeded the 30-day

---

• Retired Senior Judge assigned to the Superior Court.

1 In our Sentencing Code, “technical violation” is defined as a “violation of the

specific terms and conditions of a defendant’s probation, other than by the
commission of a new crime of which the defendant is convicted or found
guilty[.]” 42 Pa.C.S.A. § 9774.1(k).

2 Approximately two months prior to Appellant’s sentencing hearing, the
General Assembly enacted significant amendments to section 9771(c). See
42 Pa.C.S.A. § 9771(c), as amended by Act of Dec. 14, 2023, P.L. 381, No.
44 (“Act 44”) (effective June 11, 2024). It is undisputed that the amended
version of section 9771(c) applies to Appellant’s case.
J-A20007-25

maximum sentence authorized by subsection 9771(c)(2)(ii) for a second

technical violation, we vacate the judgment of sentence as unlawful and

remand for resentencing.

Statutory Language

In light of the import of section 9771(c)’s language to this appeal, we

set it forth at the outset:3

(c) Limitation on sentence of total confinement. There is a
presumption against total confinement for technical violations of
probation. The following shall apply:

(1) The court may impose a sentence of total confinement
upon revocation only if:

(i) the defendant has been convicted of another
crime;

(ii) the court finds by clear and convincing evidence
that the defendant committed a technical violation
that involves an identifiable threat to public safety and
the defendant cannot be safely diverted from total
confinement through less restrictive means; or

(iii) the court finds by a preponderance of the
evidence that the defendant committed a technical
violation and any of the following apply:

(A) The technical violation was sexual in nature.

---

3 The version of section 9771 applicable at the time of Appellant’s resentencing

was effective from June 11, 2024, to October 20, 2025. Recently, the
legislature again amended Section 9771. See Act of July 21, 2025, P.L. 127
No. 38, § 1 (effective October 20, 2025). We observe the amendments were
minor and do not implicate any of the statutory language reproduced herein;
rather, the amendments merely altered language in subsection
9771(c)(2)(iv), which is not pertinent to this appeal.

-2-
J-A20007-25

(B) The technical violation involved assaultive
behavior or included a credible threat to cause
bodily injury to another, including acts committed
against a family or household member.

(C) The technical violation involved possession or
control of a firearm or dangerous weapon.

(D) The technical violation involved the
manufacture, sale, delivery or possession with the
intent to manufacture, sell or deliver, a controlled
substance or other drug regulated under the act of
April 14, 1972 (P.L.233, No.64), known as The
Controlled Substance, Drug, Device and Cosmetic
Act.

(E) The defendant absconded and cannot be safely
diverted from total confinement through less
restrictive means.

….

(2) If a court imposes a sentence of total confinement
following a revocation, the basis of which is for one or more
technical violations under paragraph (1)(ii) or (iii), the court
shall consider the employment status of the defendant. The
defendant shall be sentenced as follows:

(i) For a first technical violation, a maximum period of
14 days.

(ii) For a second technical violation, a maximum period
of 30 days.

(iii) For a third or subsequent technical violation, the
court may impose any sentencing alternatives available
at the time of initial sentencing.

42 Pa.C.S.A. § 9771(c)(1), (c)(2) (effective June 11, 2024, to October 19,

2025) (emphasis added). Section 9771 further provides, in subsection (b):

-3-
J-A20007-25

“Subject to the limitations of subsections (b.1)4 and (c), upon revocation

[of probation,] the sentencing alternatives available to the court shall be the

same as were available at the time of initial sentencing ….” Id. § 9771(b)

(emphasis and footnote added).

This Court, in Commonwealth v. Seals, ___ A.3d ___, 2026 PA Super

29 (Pa. Super. filed Feb. 17, 2026) (en banc), recently analyzed the foregoing

language and observed that

through the enactment of Act 44, section 9771(c) prohibits the
court from imposing a sentence of total confinement for a
technical violation of probation, subject to delineated exceptions,
and imposes specific, relatively short maximum sentences for a
period of confinement imposed for a first or second technical
violation.

Id. (Slip Op. at 17). The Seals Court elaborated, “Act 44 substantially limited

[a VOP] court’s resentencing authority under subsection (c), which differs

significantly from the prior version” of section 9771(c). Id. (Slip Op. at 15);

see also id. (Slip Op. at 28) (“[W]ithout the fulfillment of statutory

preconditions, section 9771(c) strips the sentencing court of its customary

authority to exercise discretion in sentencing.”).

Procedural History

In its Pa.R.A.P. 1925(a) opinion, the VOP court summarized the events

leading up to Appellant’s present VOP resentencing:

---

4 Subsection (b.1), which pertains to failure to pay fines, is inapplicable to the

instant case.

-4-
J-A20007-25

On April 18, 2019, Appellant was arrested for [possession with
intent to deliver a controlled substance, 35 P.S. § 780-113(a)(30),
and criminal conspiracy to commit the same offense, 18 Pa.C.S.A.
§ 903(a).] Appellant entered into a negotiated guilty plea for both
charges on June 4, 2019. Sentencing was deferred and the court
ordered a pre-sentence investigation report, [as well as] a forensic
intensive recovery [substance abuse evaluation] …. Appellant
remained on bail.

Appellant failed to appear at the scheduled sentencing
[hearing] on August 13, 2019. …. On September 5, 2019,
Appellant returned to the court and his bail was revoked.
Appellant was sentenced [by the Honorable Rayford A. Means
(Judge Means)] on [October] 2, 2019, to eleven and a half to
twenty-three months [in jail], followed by four years of reporting
probation. The court made Appellant re-entry eligible, … and
immediately paroled him to [a drug] treatment [facility] when a
bed became available.

On February 6, 2020, a bench warrant was issued for
[Appellant’s arrest based on his] absconding from [the supervision
of the Philadelphia] Adult Parole and Probation Department
(hereinafter “APPD”).5 Subsequently, on February 20, 2020,
[following a Gagnon I6 VOP hearing, Judge Means] lifted the
[bench warrant], lodged a detainer, and denied Appellant’s motion

---

5 Neither the record nor VOP court docket indicate that APPD or the
Commonwealth filed a petition to revoke Appellant’s probation, or a notice of
probation violations.

6 See Gagnon v. Scarpelli, 411 U.S. 778, 781-82 (1973) (discussing
revocation hearings). This Court has explained that

when a parolee or probationer is detained pending a revocation
hearing, due process requires a determination at a pre-revocation
hearing, a Gagnon I hearing, that probable cause exists to believe
that a violation has been committed. Where a finding of probable
cause is made, a second, more comprehensive hearing, a Gagnon
II hearing, is required before a final revocation decision can be made.

Commonwealth v. Allshouse, 969 A.2d 1236, 1240 (Pa. Super. 2009)
(some internal citations omitted).

-5-
J-A20007-25

to remove the detainer.7 However, due to COVID-19, Appellant’s
detainer was lifted on April 9, 2020[, with the Commonwealth’s
agreement].

VOP Court Opinion, 11/4/24, at 2 (footnotes added; footnote citations in

original omitted; some punctuation modified).

On August 3, 2020, APPD filed a Gagnon II Summary, which stated

Appellant had committed potential direct violations of his probation.

Specifically, Appellant was arrested on February 11, 2020, and charged with,

inter alia, simple assault and recklessly endangering another person. Gagnon

II Summary, 8/3/20, at 1 (unpaginated). It is undisputed that these charges

were eventually withdrawn. See Commonwealth’s Brief at 3; Gagnon II

Summary, 12/30/20, at 2 (unpaginated).

Four months later, APPD filed another Gagnon II Summary wherein it

recommended that Appellant’s “probation be continued.” Gagnon II

Summary, 12/3/20, at 2 (unpaginated); see also id. (summarizing

Appellant’s supervision history and explaining that APPD had previously

struggled to make contact with Appellant). According to the VOP court docket,

---

7 Pertinently, it is undisputed that Judge Means did not find Appellant in
violation of his probationary conditions. Our review further discloses that the
certified record does not contain a transcript of the February 20, 2020,
hearing. However, the VOP court docket states that Appellant “object[ed] to
these Gagnon Hearings not being recorded by digital recording or a
representative of the Court Reporter’s Office.” Order, 8/20/21 (citation
modified).

-6-
J-A20007-25

Judge Means conducted a VOP hearing on December 8, 2020, at the conclusion

of which Appellant’s probation was continued. 8

Subsequently, on August 2, 2021, a bench warrant was issued for

Appellant’s arrest, based on his absconding from supervision. APPD filed a

Gagnon II Summary on August 16, 2021, asserting that five days earlier,

Appellant was arrested and charged with retail theft, 9 “which violates [Judge

Means’s] supervision.” Gagnon II Summary, 8/16/21, at 2 (unpaginated).

On August 20, 2021, the VOP court lifted Appellant’s bench warrant,

lodged a detainer, and granted Appellant’s motion to remove the detainer. 10

On September 1, 2021, Judge Means conducted an un-transcribed VOP

hearing, at the conclusion of which Appellant’s probation was continued.

The VOP court docket indicates that on April 27, 2022, a bench warrant

was issued based on an unspecified “Probation Violation.” There are no further

docket entries until December 22, 2023, when APPD petitioned to schedule a

---

8 The record does not contain a transcript of the December 8, 2020, hearing.

However, it is undisputed that Judge Means found no violation of Appellant’s
probationary conditions.

9 The record does not reveal the disposition of the purported retail theft
charge.

10 The August 20, 2021, order is not contained in the record.

-7-
J-A20007-25

Gagnon I hearing.11 The VOP court subsequently issued another bench

warrant for Appellant, as well as a detainer.

In January 2024, following Judge Means’s retirement from the bench,

Appellant’s case was reassigned to the Honorable Natasha Taylor-Smith

(Judge Taylor-Smith). Judge Taylor-Smith conducted a VOP hearing on

January 10, 2024.12 It is undisputed that Judge Taylor-Smith found Appellant

in technical violation and revoked his probation. 13 However, the record does

not elucidate the nature of the violation. Judge Taylor-Smith resentenced

Appellant to three years of probation.

In April 2024, APPD filed another Gagnon II Summary wherein it

“requested [a] violation of probation hearing to address [Appellant’s] chronic

absconder status.” Gagnon II Summary, 4/10/24, at 2 (unpaginated); see

also id. (asserting that after the January 10, 2024, VOP hearing, “[Appellant]

never reported to the APPD. Contact notices were sent to [Appellant’s] last

known address but were returned.”). Although the VOP court scheduled a

VOP hearing for April 16, 2024, Appellant failed to appear. Consequently, the

---

11 APPD filed a Gagnon I Summary on December 26, 2023.

12 The record does not contain a transcript of the January 10, 2024, hearing.

13 Notably, at issue in this appeal is whether Judge Taylor-Smith’s January 10,

2024, ruling constituted Appellant’s first, or subsequent, technical probation
violation, for purposes of applying 42 Pa.C.S.A. § 9771(c)(2). Appellant
asserts it was his first technical violation, whereas the Commonwealth and
VOP court claim it was at least a fifth violation.

-8-
J-A20007-25

VOP court issued a bench warrant. Following Appellant’s apprehension, the

court lifted the bench warrant on May 15, 2024, and lodged a detainer,

pending a VOP hearing.

Judge Taylor-Smith conducted a VOP hearing on August 7, 2024.

Defense counsel requested that the court “consider lifting the detainer and

continuing [Appellant’s] supervision[.]” N.T., 8/7/24, at 4. The

Commonwealth countered that a sentence of total confinement was

appropriate, particularly in light of Appellant’s history of absconding and

probation violations. Id. at 5. Judge Taylor-Smith found Appellant in

technical violation of his probation. Id. at 6.

Judge Taylor-Smith then reviewed the history of Appellant’s supervision

and probation violations. Id. at 8-9. The court considered argument from

the parties, including the following argument from defense counsel:

Your Honor, if I may make argument on the record [regarding]
the amendments to [section] 97[]71[(c)]. It’s my argument that
[Appellant] has [] one prior re-sentencing, as Your Honor
mentioned, in January of 2024. [] My argument [is] that this
would be [Appellant’s] second technical violation, as he
hasn’t been found in technical violation previously by the
court but for that resentencing[. T]herefore, under [section
9771(c)(2)(ii)], it’s my understanding that the court would be
limited to 30 days of incarceration. First and foremost,
[because] … this would be [Appellant’s] second technical violation,
but also the second prong being that there is no showing that
[Appellant] cannot be safely [rehabilitated] through less
restrictive means.

-9-
J-A20007-25

N.T., 8/7/24, at 9 (emphasis added; some punctuation and capitalization

modified). The Commonwealth did not respond to Appellant’s argument

regarding section 9771(c). See id.

The VOP court rejected Appellant’s claim that section 9771(c)(2)(ii)

applied and statutorily limited Appellant’s sentence to no more than 30 days’

incarceration, reasoning as follows:

I understand the defense argument that this would only be
[Appellant’s] second [probation] revocation. But in terms of
actual[] violations, this is at least … the 6th violation of his
supervision, even if he had [] been [previously] revoked [] on
[only] one other occasion.

Id. at 10 (emphasis added). Accordingly, the VOP court implied that it had

the authority to impose any sentencing alternatives available at the time of

Appellant’s original sentencing. 14 See id. at 10-11; see also 42 Pa.C.S.A. §

9771(c)(2)(iii) (“For a third or subsequent technical [probation] violation, the

court may impose any sentencing alternatives available at the time of initial

sentencing.”), and id. § 9771(b).

The VOP court revoked Appellant’s probation and resentenced him to

one to three years’ imprisonment. N.T., 8/7/24, at 12-13. In imposing

sentence, the court stated that it had considered, inter alia, Appellant’s (1)

“number of [probation] violations”; (2) allocution; (3) lack of sincere remorse;

---

14 Pertinently, the VOP court did not reference section 9771(c) when imposing

sentence.

• 10 - J-A20007-25

(4) lack of respect for the court; and (5) “new arrest.”15 See id. Appellant

did not file post-sentence motions.

Appellant timely filed a notice of appeal. Appellant and the VOP court

have complied with Pa.R.A.P. 1925.

Issues

Appellant presents three issues for our review:

1. Whether the [VOP] court illegally sentenced [Appellant] beyond
   42 Pa.C.S. § 9771(c)(2)(ii)’s 30-day maximum penalty for only
   a second technical violation of probation?

2. Whether the [VOP] court imposed an illegal sentence, where
   the prosecution presented insufficient evidence at revocation
   proceedings to establish any of the necessary pre-requisite
   conditions under 42 Pa.C.S. § 9771(c)(1) that would authorize
   a sentence of total confinement?

3. Whether the [VOP] court imposed an illegal sentence when it
   considered [Appellant’s] bare record of an arrest that did not
   result in conviction?

Appellant’s Brief at 3 (issues reordered for ease of disposition).

We address Appellant’s first two issues together, as they are closely

related. Appellant asks us to vacate his sentence as unlawful where, upon

revocation of probation for a second technical violation, the VOP court imposed

a sentence of total confinement that exceeded the 30-day maximum sentence

---

15 In a Gagnon II Summary filed on August 1, 2024, APPD stated that on
April 14, 2024, “[Appellant] incurred a new arrest” for retail theft; however,
that charge was subsequently withdrawn. Gagnon II Summary, 8/1/24, at
2 (unpaginated); see also N.T., 8/7/24, at 3 (Judge Taylor-Smith recognizing
that “[Appellant] picked up a new arrest [on] April [] 14th”).

• 11 - J-A20007-25

authorized by subsection 9771(c)(2)(ii). See id. at 26-47; see also 42

Pa.C.S.A. § 9771(c)(2)(ii) (“If a court imposes a sentence of total confinement

following a revocation, the basis of which is for one or more technical violations

under paragraph (1)(ii) or (iii),” the court may impose “a maximum period of

30 days” “[f]or a second technical violation”).

Issue Preservation/Characterization

We initially address whether Appellant preserved this claim for our

review. See Commonwealth v. Miller, 80 A.3d 806, 811 (Pa. Super. 2013)

(“Issue preservation is foundational to proper appellate review.” (citation

omitted)). This Court’s recent en banc decision in Seals, supra, guides our

analysis. There, we observed that

[c]orrect classification of a sentencing challenge is important, in
pertinent part, to the question of issue preservation. Generally,
an appellate court cannot review an issue that the appellant did
not raise and preserve before the trial court. See
Commonwealth v. Barnes, 151 A.3d 121, 498 (Pa. 2016); see
also Pa.R.A.P. 302 (“Issues not raised in the trial court are waived
and cannot be raised for the first time on appeal.”). One exception
to this general requirement, however, is a “challenge … implicating
the legality of the appellant’s sentence.” Barnes, 151 A.3d at
124. A challenge to the legality of a sentence can be
appealed as of right and cannot be waived, whereas a
challenge of the discretionary aspects of a sentence has
procedural prerequisites, including issue preservation,
identification of the issue in an appellate brief in accordance with
Pa.R.A.P. 2119(f), and raising a substantial question that the
sentence is not appropriate under the Sentencing Code to invoke
this Court’s discretion to address the issue on appeal. See 42
Pa.C.S. § 9781(a), (b); Pa.R.A.P. 2119(f); see also
Commonwealth v. Davis, 341 A.3d 808, 813 (Pa. Super. 2025).
Recognizing that the line between the two types of claims is not
always clear, our Supreme Court has directed us to consider
whether an appellant is challenging the trial court’s authority to

• 12 - J-A20007-25

impose the sentence at issue—a legality challenge—or to [the]
trial court’s exercise of that authority—a discretionary aspects
challenge. See Commonwealth v. Prinkey, 277 A.3d 554, 560,
563-64 (Pa. 2022).

Seals, 2026 PA Super 29 (Slip Op. at 17-18) (emphasis added); see also

Commonwealth v. Starr, 234 A.3d 755, 764 (Pa. Super. 2020) (stating that

“a challenge to the legality of the sentence cannot be waived, but a challenge

to the discretionary aspects can.” (citation omitted)).

Thus, we must first determine whether Appellant’s claim implicates the

legality or the discretionary aspects of his sentence; if the former, the claim

is not subject to issue preservation requirements. Id. “The question of

whether a challenge to a sentence implicates its discretionary aspects or its

legality presents a pure question of law.” Id. (Slip Op. at 24) (quoting

Prinkey, 277 A.3d at 560). “We review questions of law de novo with a

plenary scope of review.” Id.

The Commonwealth contends Appellant’s claim implicates the

discretionary aspects of sentencing and is thus subject to waiver. See

Commonwealth’s Brief at 10-16, 26-27. The Commonwealth asserts “this

Court [has] held that claims alleging that a VOP court failed to comply with

Section 9771(c)’s sentencing provisions go to the discretionary aspects of

sentenc[ing,]” as opposed to the legality of the sentence. Id. at 26. In

support, the Commonwealth cites this Court’s panel decisions in

Commonwealth v. Schutzues, 54 A.3d 86 (Pa. Super. 2012), and

• 13 - J-A20007-25

Commonwealth v. Slaughter, 339 A.3d 456 (Pa. Super. 2025), both of

which we discuss below. See Commonwealth Brief at 11-16, 26-27.

The Commonwealth correctly points out that Appellant’s brief does not

include a Pa.R.A.P. 2119(f) statement. Commonwealth Brief at 27; see also

Seals, supra (stating that the inclusion of a Rule 2119(f) statement in an

appellant’s brief is one of the procedural prerequisites to reach the merits of

a challenge to the discretionary aspects of sentencing). The Commonwealth

objects to Appellant’s omission of a Rule 2119(f) statement and asserts that

he waived his claim on this basis. Commonwealth Brief at 27 (citing

Commonwealth v. Lively, 231 A.3d 1003, 1011 (Pa. Super. 2020) (stating,

in the context of a challenge to the discretionary aspects of sentencing: “If a

defendant fails to include an issue in his Rule 2119(f) statement, and the

Commonwealth objects, then the issue is waived and this Court may not

review the claim.” (citation omitted)).

Appellant counters that his issue is a non-waivable challenge to the

legality of the sentence. Appellant’s Brief at 46-47. According to Appellant,

our legislature’s “use of the words ‘shall’ and ‘maximum’” in subsection

9771(c)(2)(ii) “leaves no room for a revocation court to exercise discretion

and impose more than 30 days of confinement for a second technical

violation.” Id. at 47 (citing 42 Pa.C.S.A. § 9771(c)(2)(ii)). Appellant contends

Schutzues and Slaughter are distinguishable. See Appellant’s Reply Brief

at 1-6.

• 14 - J-A20007-25

We are guided by this Court’s recent en banc decision in Seals, supra,

which was decided after the parties in the instant appeal filed their respective

appellate briefs. In Seals, the defendant argued that the VOP court erred in

imposing a sentence of total confinement, following the revocation of his

probation for technical violations, where the sentence imposed (one to five

years’ imprisonment) exceeded the 14-day maximum sentence authorized by

subsection 9771(c)(2)(i) for a first technical violation. Seals, 2026 PA Super

29 (Slip Op. at 30).

The Seals Court analyzed both Schutzues and Slaughter,16 and

announced that

to the extent that Schutzues or Slaughter classify a claim
involving a sentencing court’s failure to consider and/or make the
findings required by section 9771(c) as a matter implicating the
discretionary aspects of a sentence, they are overruled.

---

16 In lieu of reproducing herein Seals’s thorough analysis of Schutzues and

Slaughter, we instead refer to Seals. See Seals, 2026 PA Super 29 (Slip
Op. at 18-22). In short, in Schutzues, a decision from 2012, this Court
applied the former version of Section 9771(c), which is substantially
different than the version of the statute as amended by Act 44. See Seals,
2026 PA Super 29 (Slip Op. at 20-21); Schutzues, 54 A.3d at 98 (holding
that “challenges under [former section] 9771(c) are not among the narrow
class of issues that implicate the legality of a sentence.”). In Slaughter,
which was decided after the Act 44 amendments became effective, a panel of
this Court, citing the previously-quoted language in Schutzues, “classified a
resentencing challenge alleging a ‘lack of adherence’ to newly amended
section 9771(c) as one implicating the discretionary aspects of sentencing.”
Seals, 2026 PA Super 29 (Slip. Op. at 18) (quoting Slaughter, 339 A.3d at
464).

• 15 - J-A20007-25

Seals, 2026 PA Super 29 (Slip Op. at 29) (emphasis added). The Seals Court

determined that our Supreme Court, in Prinkey, supra, “repudiated the

analysis underpinning Schutzues,” and observed the Prinkey Court

instructed that

the inquiry is whether, assuming the appellant’s claim prevails,
the result would be that the trial court lacked authority to impose
the sentence at issue. If so, then the appellant’s challenge
implicates the legality of his sentence. Conversely, if the
challenge is not to the existence of certain authority but to the
exercise of that authority, then the challenge goes to the
discretionary aspects of a sentence, not to its legality.

Seals, 2026 PA Super 29 (Slip Op. at 27) (quoting Prinkey, 277 A.3d at 563-

64).

The Seals Court held that “a claim that the trial court failed to adhere

to section 9771(c) when resentencing a probationer to a period of total

confinement implicates the legality of the sentence, not its discretionary

aspects.” Id. (Slip Op. at 27); see also id. (Slip Op. at 26) (recognizing “a

claim that a sentence was imposed without the fulfillment of statutory

preconditions to the court’s sentencing authority [is] a challenge to the legality

of sentence.” (citation and internal quotation marks omitted)).

In accordance with Seals, we conclude Appellant’s claim implicates the

legality of his sentence, not the discretionary aspects of sentencing, and it is

therefore non-waivable. Id. (Slip Op. at 27); see also Commonwealth v.

Hansley, 47 A.3d 1180, 1189 (Pa. 2012) (“The classic claim of an ‘illegal

• 16 - J-A20007-25

sentence’ is one that exceeds the statutory limits.” (citation omitted)). We

thus proceed to address the merits of Appellant’s first issue.

Appellant’s Argument

Appellant argues that under subsection 9771(c)(2)(ii), the VOP court

lacked authority to impose a sentence of incarceration in excess of 30 days’

incarceration, for his second technical probation violation. Appellant’s Brief at

26-27; see also id. at 27 (pointing out that pursuant to subsection

9771(c)(2)(iii), “[o]nly upon finding a third [or subsequent] technical violation

may a [VOP] court impose a sentence exceeding 30 days of incarceration.”).

Appellant contends that the VOP court

lacked authority to sentence [him] … for “a third or subsequent
technical violation,” 42 Pa.C.S.A. § 9771(c)(2)(iii), because the
[VOP] court found him in technical violation on only one prior
occasion, January 10, 2024.

Appellant’s Brief at 45 (one footnote omitted; remaining footnote citation to

record modified and moved to body).

Initially, we set forth the reasoning advanced in the VOP court’s Rule

1925(a) opinion, which rejected Appellant’s legality challenge:

Appellant argues the technical violation found by [the VOP] court
on August 7, 2024, was his second technical violation. Therefore,
Appellant asserts, legally, he can only be sentenced to a maximum
period of thirty days of incarceration. See [42 Pa.C.S.A.] §
9771(c)(2)(ii). However, Appellant is incorrect. Although
Appellant’s probation was never revoked, he still
committed technical violations of his supervision on
multiple occasions. Appellant has technically violated his
supervision at least six times.

• 17 - J-A20007-25

Appellant first violated his supervision[, in December 2019,]
when he left the [court-]ordered [drug] treatment program the
same day he arrived [at the treatment facility]. After leaving,
Appellant failed to contact APPD and was in absconding status
until he was arrested on February 11, 2020 ….

On October 7, 2020, Appellant contacted APPD to confirm
his address. However, that was the last contact APPD had with
him until he returned to custody via an arrest on August 11, 2021.
…. At a violation hearing on September 1, 2021, the court
continued Appellant’s probation. After the hearing, Appellant
failed to report to APPD. Despite numerous efforts, APPD was
unable to establish contact with Appellant. On December 21,
2023, Appellant returned to custody via a new arrest. ….

Appellant was found to be in violation of his supervision on
January 10, 2024. [The VOP] court resentenced Appellant to
three years of reporting probation. Despite being given the
opportunity to do so, Appellant did not report to APPD as ordered.
Appellant absconded for twenty-nine days before he was arrested
on February 8, 2024. Appellant was released from custody the
same day[, and subsequently] absconded … before being arrested
and returned to custody on April 14, 2024. Again, Appellant was
released the same day and continued to abscond [from]
supervision until May 6, 2024, when he was picked up on an
absconder warrant. From the start of Appellant’s supervision to
the violation hearing on August 7, 2024, Appellant absconded for
approximately 1,283 days, or about three and a half years.

VOP Court Opinion, 11/4/24, at 7-8 (footnote citations to record omitted;

emphasis added; punctuation and capitalization modified).

The VOP court concluded that, as Appellant purportedly had more than

three technical probation violations, pursuant to subsection 9771(c)(2)(iii),

the court “could legally impose any sentence that was available at the time of

• 18 - J-A20007-25

Appellant’s initial sentencing.”17 Id. at 8; see also 42 Pa.C.S.A. §

9771(c)(2)(iii).

Appellant disagrees, arguing the VOP court’s opinion “advances a

perverse interpretation of the law, which only exacerbates the ills of

unnecessary incarceration that the General Assembly sought to ameliorate

with Section 9771’s reforms.” Appellant’s Brief at 41; see also 42 Pa.C.S.A.

§ 9771(c) (“There is a presumption against total confinement for technical

violations of probation.”). Appellant asserts that vacatur of his judgment of

sentence is necessary, where the VOP court unlawfully

treat[ed] every alleged act of noncompliance in Appellant’s
supervision history as a separate[, technical probation] violation
under Section 9771(c)(2)(i)-(iii). Without legal analysis or
citation to authority, the [VOP] court counts six technical
violations by aggregating related instances of noncompliance that
took place during a single probationary period[,] and revisiting
years-old allegations of noncompliance that another judge[, i.e.,
Judge Means,] resolved by not finding [Appellant] culpable. [The
VOP court] punished [Appellant] as a three-time offender,

---

17 The VOP court did not expressly find that Appellant’s technical violations
satisfied the statutory prerequisites to imposing a sentence of total
confinement set forth in 42 Pa.C.S.A. § 9771(c)(1). However, the court
repeatedly referred to Appellant’s history of absconding from supervision,
see, e.g., VOP Court Opinion, 11/4/24, at 7-8, and found that “Appellant is
‘not amenable’ to community supervision, as he has failed to report[ and]
comply with supervision requirements….” Id. at 10; see also N.T., 8/7/24,
at 10-11; 42 Pa.C.S.A. § 9771(c)(1)(iii)(E) (providing that a VOP court “may
impose a sentence of total confinement,” consistent with the provisions of
subsection 9771(c)(2), where “[t]he defendant absconded and cannot be
safely diverted from total confinement through less restrictive means.”). Cf.
Seals, 2026 PA Super 29 (Slip Op. at 48) (observing that the VOP court in
that case “did not make any findings as to whether Seals’ technical violations
satisfied the prerequisites to imposing a sentence of total confinement. See
42 Pa.C.S. § 9771(c)(1).”).

• 19 - J-A20007-25

[i.e., under subsection 9771(c)(2)(iii),] even though [the court]
had previously found him in technical violation of probation
only once[,] and never afforded him the opportunity to reform
while subject to a second[,] technical violation finding. The [VOP]
court’s approach offends [Section 9771(c)’s] plain language,
contravenes the recidivist philosophy underpinning its recent
reforms, and frustrates the General Assembly’s intent to curtail
total confinement as a sanction for minor technical violations.

Appellant’s Brief at 28-29 (footnote omitted; emphasis added; formatting

modified).

According to Appellant, “[a] ‘technical violation’ within the meaning of

Section 9771(c)(2) requires a judicial finding.” Id. at 29.

[E]ven if there was properly-admitted evidence in the record
suggesting that [Appellant], while on Judge Means’ supervision,
absconded from time to time and failed to obtain court-ordered
[drug] treatment, Judge Means ultimately never found [Appellant]
in technical violation for those (or any other) reasons.

Id. at 29-30.

Appellant further argues that the VOP court’s improper calculation of his

number of technical probation violations is contrary to settled Pennsylvania

law, which establishes that “unproven allegations of past wrongdoing—without

corresponding court findings of culpability—have no probative value.” Id. at

30 (footnote omitted) (citing, inter alia, Commonwealth v. Berry, 323 A.3d

641, 643 (Pa. 2024) (“Because arrests without conviction happen to the

innocent as well as the guilty, they offer nothing probative about a defendant’s

background at sentencing.” (footnote and internal quotation marks

omitted))). Appellant contends that

• 20 - J-A20007-25

[r]egardless of how many conditions a probationer violates during
a single supervision period, the revocation court can find [the
probationer] in technical violation but a single time for that
conduct. In calculating a first, second, and third or subsequent
technical violation[, i.e., for purposes of applying subsection
9771(c)(2)], a court may not aggregate multiple instances of
failing the same condition—or failures to complete different
conditions—if each instance of noncompliance occurred within the
same reporting period.

Appellant’s Brief at 34.

Finally, Appellant claims to the extent that section 9771(c) is

ambiguous, pursuant to the “rule of lenity” (discussed infra), we must resolve

the ambiguity in his favor because section 9771(c) is a penal statute. Id. at

45.

The Commonwealth’s Argument

The Commonwealth counters the VOP court imposed a lawful sentence

pursuant to subsection 9771(c)(2)(iii), where, at the time of sentencing,

Appellant had committed more than three prior technical probation violations.

See Commonwealth’s Brief at 26-36; see also 42 Pa.C.S.A. § 9771(c)(2)(iii)

(“For a third or subsequent technical violation, [a VOP court] may impose any

sentencing alternatives available at the time of initial sentencing.”). The

Commonwealth contends that section 9771(c)’s language

focus[es] on a probationer’s conduct, i.e., the number of times
he has failed to comply with the conditions of his probation, and
not on the number of times he has previously been judicially
found to have violated his probation.

• 21 - J-A20007-25

Id. at 29 (emphasis in original). According to the Commonwealth, section

9771(c) “looks to the number of violations the defendant has committed[.]”

Id. at 30 (emphasis in original).

The Commonwealth complains that if Appellant’s

proposed interpretation of [section 9771(c)] were to carry the
day, a [VOP] court would be limited to sentencing a probationer
to no more than fourteen or thirty days of incarceration at a first
or second revocation hearing, respectively, regardless of how
many technical violations the probationer may have committed up
until that point.

Id. at 35. Additionally, the Commonwealth concedes

[Appellant] is correct that the legislative goal of [Act 44] was a
graded sentencing scheme to not severely punish probationers for
committing first or second technical violations[.] And where a
probationer incurs only a first or a second technical violation, then
that probationer will receive the benefit of that scheme. What
[section 9771(c)] is not intended to do is provide a windfall for
probationers who commit numerous technical violations before a
first or second revocation hearing is held, which is what
[Appellant’s] reading of the statute would do.

Id. at 33-34 (internal citation and emphasis omitted).

Standard of Review

We review a challenge to the legality of a sentence de novo
and with a plenary scope of review. Commonwealth v. Prince,
320 A.3d 698, 700 (Pa. Super. 2024). Where, as here, our
statutory analysis concludes that the trial court’s authority is
“preconditioned on the finding of a triggering fact,” the “legality
of sentence claim includes our de novo review of whether the
requisite fact exists.” Id. at 706. To the extent that our analysis
“requires us to engage in statutory interpretation,” that too
“presents a question of law,” id. at 703 (citation omitted), of which

• 22 - J-A20007-25

we engage in a de novo review. [Commonwealth v.] Crosby,
329 A.3d [1141,] 1148-49 [(Pa. 2025)].

Seals, 2026 PA Super 29 (Slip Op. at 35).

Statutory Interpretation

The Statutory Construction Act, 1 Pa.C.S.A. §§ 1501-1991, “guides our

analysis of statutory text.” Seals, 2026 PA Super 29 (Slip Op. at 24). “The

object of all interpretation and construction of statutes is to ascertain and

effectuate the intention of the General Assembly.” 1 Pa.C.S.A. § 1921(a).

“The statute’s plain language generally provides the best indication of

legislative intent.” A.S. v. Pa. State Police, 143 A.3d 896, 903 (Pa. 2016)

(citation omitted).

[“]To ascertain [a statute’s] plain meaning, we consider the
operative statutory language in context and give words and
phrases their common and approved usage.” Commonwealth v.
Chesapeake Energy Corp., 247 A.3d 934, 942 (Pa. 2021).
Further, we must give effect and ascribe meaning to each word
and provision chosen by our legislature, assuming none is mere
surplusage. See, e.g., Commonwealth v. McClelland, 233
A.3d 717, 734 (Pa. 2020) (“Some meaning must be ascribed to
every word in a statute … and there is a presumption that
disfavors interpreting language as mere surplusage.”); 1 Pa.C.S.
§ 1921(a) (“Every statute shall be construed, if possible, to give
effect to all its provisions.”). Finally, “we are to assume that the
General Assembly does not intend an absurd result to flow from
the construction of any statute.” Commonwealth v. Shiffler,
879 A.2d 185, 194 (Pa. 2005).

Commonwealth v. Crenshaw, 306 A.3d 383, 387-88 (Pa. Super. 2023)

(citations and formatting modified).

“If statutory language is ambiguous, sections 1921(c) and 1922 [of the

Statutory Construction Act] enumerate nonexclusive lists of eight statutory

• 23 - J-A20007-25

construction factors and five presumptions that we may consider to aid us in

discerning the General Assembly’s intent.” Seals, 2026 PA Super 29 (Slip Op.

at 25) (citing 1 Pa.C.S.A. §§ 1921(c), 1922). “A statute is ambiguous when

there are at least two reasonable interpretations of the text.”

Commonwealth v. Lehman, 311 A.3d 1034, 1048 n.20 (Pa. 2024) (citation

omitted); see also Commonwealth v. Griggs, ___ A.3d ___, 2025 PA Super

285 (Pa. Super. filed Dec. 23, 2025) (Slip Op. at 11) (“It is only when a

provision, read in context, is susceptible to at least two reasonable

interpretations, or ‘raises non-trivial interpretive difficulties on its face,’ that

we deem the language to be ambiguous.”) (quoting Commonwealth v.

Hardy, 337 A.3d 385, 409 n.113 (Pa. 2025)).

Our Supreme Court has explained that

[w]hether a statutory term is unambiguous … does not turn solely
on dictionary definitions of its component words. Rather, the
plainness or ambiguity of statutory language is determined not
only by reference to the language itself, but [also] by the specific
context in which that language is used, and the broader context
of the statute as a whole.

A.S., 143 A.3d at 906 (citation, brackets, and internal quotation marks

omitted).

Moreover, it is established that ambiguity in criminal statutes requires

application of the rule of lenity, which provides that penal statutes are to be

strictly construed, with any ambiguities being “resolved in favor of the

accused.” Commonwealth v. Coleman, 285 A.3d 599, 612 (Pa. 2022)

• 24 - J-A20007-25

(citation omitted); 1 Pa.C.S.A. § 1928(b)(1) (providing penal statutes “shall

be strictly construed”).

As the United States Supreme Court explained in Dunn v. United
States, 442 U.S. 100, 99 S. Ct. 2190, 60 L. Ed. 2d 743 (1979),
the application of the rule of lenity is “not merely a convenient
maxim of statutory construction,” but, rather, “is rooted in
fundamental principles of due process which mandate that no
individual be forced to speculate, at peril of indictment, whether
his conduct is prohibited.” Id. at 112.

Commonwealth v. Smith, 346 A.3d 1251, 1263 (Pa. 2025). “However, this

rule of lenity does not require us to ‘give the words of a statute their narrowest

possible meaning, nor does it override the general principle that the words of

a statute must be construed according to their common and approved usage.’”

Griggs, 2025 PA Super 285 (Slip Op. at 11-12) (quoting Lehman, 311 A.3d

at 1048 n.20).

Upon review, we conclude that section 9771(c), considered in the

context of the statutory language as a whole, is ambiguous, as it is amenable

to “at least two reasonable interpretations,” Lehman, 311 A.3d at 1048 n.20,

consistent with the parties’ above-described, equally-compelling arguments.

The language of section 9771(c) fails to make clear whether, for purposes of

tabulating a probationer’s “technical violations,” a VOP court must count the

number of times that the probationer previously (1) committed technical

probation violations—i.e., engaged in conduct which violated terms of

probation, regardless of whether each individual action resulted in a judicial

finding; or (2) had been judicially found to have technically violated

• 25 - J-A20007-25

probation.18 Although the Seals Court did not address this issue, the Court

observed that if the “evidence establishes that the probationer has violated

the conditions of probation, the trial court must make a finding on the

record that a violation occurred and then proceed to resentence the

petitioner.” Seals, 2026 PA Super 29, (Slip Op. at 13) (emphasis added;

footnote omitted) (citing 42 Pa.C.S.A. § 9754(d) (providing that the “sentence

to be imposed in the event of the violation of a condition [of probation] shall

not be fixed prior to a finding on the record that a violation has occurred”),

and id. § 9771(d) (requiring a VOP hearing prior to revocation of probation)).

Therefore, because we conclude the plain language of section 9771(c), a penal

statute, is ambiguous, the rule of lenity mandates that we resolve the

ambiguity in Appellant’s favor. Coleman, 285 A.3d at 612.

---

18 The statute defining “technical violation,” 42 Pa.C.S.A § 9774.1(k), offers

no guidance on this point. Id. (defining technical violation as “[a] violation of
the specific terms and conditions of a defendant’s probation, other than by the
commission of a new crime of which the defendant is convicted or found guilty
by a judge or jury or to which the defendant pleads guilty or nolo contendere
in a court of record.”); see also 204 Pa. Code § 307a.1(b) (Pennsylvania
Resentencing Guideline provision defining “technical violation” as the “[f]ailure
to comply with the terms and conditions of an order of probation, other than
by the commission of a new offense of which the person is convicted.”).

We further observe that this appeal highlights the importance of VOP
courts maintaining precise docket entries as to the findings and conclusions
reached at Gagnon I hearings. Regardless of whether a VOP court chooses
to revoke a probation term or continue a probation term at a Gagnon I
hearing, the court should explicitly note, in its docket entry for the hearing,
whether or not the court found the defendant in violation of his or her
probation term and whether the violation was direct or technical in nature.

• 26 - J-A20007-25

Moreover, we are persuaded by Appellant’s claim that the VOP court’s

“approach offends [section 9771(c)’s] plain language, contravenes the

recidivist philosophy underpinning its recent reforms,19 and frustrates the

General Assembly’s intent to curtail total confinement as a sanction for minor

technical violations.” Appellant’s Brief at 29 (footnote added). Thus, we hold

that in calculating a probationer’s technical violations for purposes of section

9771(c), a VOP court must consider only violating behaviors that were

accompanied by a judicial finding that the probationer committed a violation.

Appellant’s VOP Sentence

Based upon the foregoing, for purposes of application of subsection

9771(c)(2), there is no support for the VOP court’s finding that Appellant had

committed six or more technical violations at the time of sentencing. Our

review discloses only one prior judicial finding of a technical violation; namely,

Judge Taylor-Smith’s above-described January 10, 2024, probation

revocation.

Consistent with subsection 9771(c)(2)(ii) and Seals, supra, we

conclude the VOP court lacked the statutory authority to impose a sentence in

excess of 30 days’ incarceration for a second technical violation. See Seals,

2026 PA Super 29 (Slip Op. at 29) (“Section 9771(c)(2) specifically delineates

---

19 We reiterate section 9771(c)’s express “presumption against total
confinement for technical violations of probation.” 42 Pa.C.S.A. § 9771(c)
(emphasis added).

• 27 - J-A20007-25

the maximum allowable sentence of total confinement for a first and second

technical violation. Any sentence imposed in excess of the statutory maximum

is unquestionably illegal.” (internal citations omitted)). Appellant’s sentence

of one to three years’ imprisonment is far greater than the 30-day maximum

sentence authorized by subsection 9771(c)(2)(ii), and is therefore illegal. Id.

(Slip Op. at 49) (vacating Seals’s judgment of sentence as illegal and

remanding for resentencing, where the VOP court’s “sentence of total

confinement is far greater than the maximum authorized sentence for a first

… technical probation violation” under subsection 9771(c)(2)(i)). Accordingly,

we vacate Appellant’s judgment of sentence and remand for resentencing

consistent with this opinion.20 Id.

Judgment of sentence vacated. Case remanded with instructions.

Jurisdiction relinquished.

Date: 3/27/2026

---

20 In light of our granting Appellant relief on his first two issues, we need not

address his final issue.

• 28 -