J-A18021-25
2025 PA Super 172
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SCOTT FITZGERALD :
:
Appellant : No. 1229 EDA 2024
Appeal from the Judgment of Sentence Entered April 1, 2024
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001789-2015
BEFORE: OLSON, J., DUBOW, J., and BECK, J.
OPINION BY BECK, J.: FILED AUGUST 12, 2025
Scott Fitzgerald (“Fitzgerald”) appeals from the judgment of sentence
entered by the Philadelphia County Court of Common Pleas (“trial court”)
following the revocation of his probation. Fitzgerald argues that the trial court
wrongly determined that he violated his probation based on its finding that he
committed the crime of harassment, as he had never been arrested, charged,
or convicted of that offense. Because we agree that the trial court improperly
found Fitzgerald in violation and revoked his probation on this basis, we vacate
his judgment of sentence and remand this matter to the trial court.
On September 28, 2014, Fitzgerald was at a bar when he punched
Michael Tosto (“Tosto”) in the face causing him to fall backwards and hit his
head on the ground. Tosto sustained a concussion, fractured nose, sprained
neck, and a cut on the back of his head for which he needed stitches. On April
29, 2016, the trial court convicted Fitzgerald of aggravated assault, simple
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assault, and recklessly endangering another person. On August 16, 2016, the
court sentenced Fitzgerald to eleven-and-a-half to twenty-three months of
incarceration, followed by eight years of probation. Fitzgerald served his term
of incarceration on house arrest.
Fitzgerald filed a direct appeal, which he later discontinued. He
subsequently filed a timely petition pursuant to the Post Conviction Relief Act
(“PCRA”),1 which the PCRA court dismissed. This Court affirmed the PCRA
court’s dismissal of Fitzgerald’s petition. See Commonwealth v. Fitzgerald,
2485 EDA 2018, 2019 WL 3384860 (Pa. Super. July 26, 2019) (non-
precedential decision).
In March 2024, Fitzgerald’s appellate counsel, Todd Mosser, notified the
trial court that he had received hundreds of harassing emails from Fitzgerald
and that Fitzgerald had also sent emails to the court and his trial counsel,
current Philadelphia Municipal Court Judge David Conroy. N.T., 3/21/2024, at
7, 16-18. Consequently, the trial court held violation of probation (“VOP”)
hearings on March 21, 2024 and April 1, 2024.2 At the March 21, 2024
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1 42 Pa.C.S. §§ 9541-9546.
2 It appears that the trial court initiated revocation proceedings on its own
accord, as there is no petition to revoke Fitzgerald’s probation from the
Commonwealth or the probation department in the record. See
Commonwealth v. Mayfield, 247 A.3d 1002 (Pa. 2021) (addressing a case
in which the trial court instituted revocation proceedings without the filing of
petition to revoke probation); see also Pa.R.CrimP. 708(A) (“A written
request for revocation shall be filed with the clerk of courts.”).
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hearing, the trial court introduced and admitted the emails into the record.
Id. at 7-8. Although the trial court’s email system blocked many of the emails
Fitzgerald had sent to the court, it was able to retrieve thirteen emails that he
had sent the court in the thirty days leading up to the March 21, 2024 hearing.
Id. at 7, 18. In the emails, Fitzgerald repeatedly made profane and
disparaging remarks about the trial court, Judge Conroy, and Attorney Mosser,
including racially incendiary statements. Id. at 18-19, 24, 27-28. At the April
1, 2024 hearing, the Commonwealth introduced six TikTok videos that
Fitzgerald posted to his account between February 8, 2023, and May 25, 2023.
N.T., 4/1/2024, at 7-8. In these videos, in addition to making insulting
remarks about the trial court’s, Judge Conroy’s, and Attorney Mosser’s
appearances, Fitzgerald “vowed … to exact biblical revenge” upon those in the
legal system who were involved in his case. Id. at 8-12. At the conclusion of
the hearing, the trial court found that Fitzgerald had committed the crime of
harassment, specifically under 18 Pa.C.S. § 2709(a)(3), (4), and (7), 3 and
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3 Section 2709(a) defines harassment, in relevant part, as follows:
A person commits the crime of harassment when, with intent to
harass, annoy or alarm another, the person:
…
(3) engages in a course of conduct or repeatedly commits acts
which serve no legitimate purpose;
(Footnote Continued Next Page)
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determined that he had violated his probation. Id. at 28-29. The same day,
the trial court revoked Fitzgerald’s probation and sentenced him to five to ten
years in prison.
Fitzgerald filed a timely post-sentence motion for reconsideration of his
sentence, which the trial court subsequently denied. Fitzgerald then timely
appealed to this Court.4 He presents the following issues for review:
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(4) communicates to or about such other person any lewd,
lascivious, threatening or obscene words, language, drawings or
caricatures;
…
(7) communicates repeatedly in a manner other than specified in
paragraphs (4), (5) and (6).
18 Pa.C.S. § 2709(a)(3), (4), (7).
4 We note that Fitzgerald did not file timely his Pa.R.A.P. 1925(b) statement.
On May 20, 2024, the trial court issued an order directing Fitzgerald to file a
Rule 1925(b) statement within 21 days. Fitzgerald, however, did not file his
Rule 1925(b) statement until June 19, 2024, thirty days after the entry of the
trial court’s order. “Generally, the failure to comply with an order to file a
Rule 1925(b) statement results in waiver of all appellate issues.”
Commonwealth v. Pridgen, 305 A.3d 97, 101 n.4 (Pa. Super. 2023).
Importantly, however, Rule 1925(c)(3) states:
If an appellant represented by counsel in a criminal case was
ordered to file and serve a Statement and either failed to do so,
or untimely filed or served a Statement, such that the appellate
court is convinced that counsel has been per se ineffective, and
the trial court did not file an opinion, the appellate court may
remand for appointment of new counsel, the filing or service of a
concise statement nunc pro tunc, and the preparation and filing of
an opinion by the judge.
(Footnote Continued Next Page)
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1. Did the [trial] court abuse its discretion in sentencing
[Fitzgerald] to five to ten years of incarceration for a first alleged
technical violation of his probation where such an extended period
of total confinement was manifestly excessive under the
circumstances?
2. Did the [trial] court abuse [its] discretion by finding that
[Fitzgerald] committed a technical violation of his probation where
he was not charged with a new crime nor violate a specific
condition of probation?
3. Did the [trial] court err by relying on constitutionally protected
speech in determining that [Fitzgerald] committed a technical
violation of probation?
Fitzgerald’s Brief at 4.
We begin with Fitzgerald’s second issue as we find it dispositive. In his
second issue, Fitzgerald argues that the trial court erred in revoking his
probation based on its finding that he had violated his probation by committing
the crime of harassment. Fitzgerald’s Brief at 9-12. He contends that it was
improper for the trial court to revoke his probation based on a finding that he
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Pa.R.A.P. 1925(c)(3); see also Commonwealth v. Burton, 973 A.2d 428,
433 (Pa. Super. 2009) (en banc) (declining to find the appellant’s claims
waived on appeal based on Pa.R.A.P. 1925(c)(3)).
In this case, Fitzgerald’s counsel, by filing an untimely 1925(b)
statement, was per se ineffective. Fitzgerald’s counsel did file a request for
an extension on the deadline to file a Rule 1925(b) upon which the trial court
did not rule. Additionally, the trial court did not comment on the untimeliness
of Fitzgerald’s 1925(b) statement and, in fact, addressed the issues he raised
in his statement. We therefore decline to remand this matter and will review
the merits of Fitzgerald’s claims. See Commonwealth v. Andrews, 213
A.3d 1004, 1010 (Pa. Super. 2019) (declining to find the appellant’s claims
waived pursuant to Pa.R.A.P. 1925(c)(3) and declining to remand to the trial
court because the trial court addressed the issues raised in the appellant’s
untimely 1925(b) statement).
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committed harassment when he was never arrested, charged, or, most
importantly, convicted of that criminal conduct. Id.
“Our review of a revocation proceeding is limited to determining the
validity of the proceeding, the legality of the judgment of sentence imposed,
and the discretionary aspects of sentencing.” Commonwealth v. Blango,
327 A.3d 670, 675-76 (Pa. Super. 2024). “The 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.” Id. at 675 (citation and brackets omitted).
In support of his argument, Fitzgerald relies on our Supreme Court’s
decision in Commonwealth v. Foster, 214 A.3d 1240 (Pa. 2019). See
Fitzgerald’s Brief at 9-11. In that case, Foster was on probation following his
convictions of drug-related crimes. Foster, 214 A.3d at 1243. During the
probationary period of his sentence, Foster’s probation officer saw several
photographs Foster had posted on social media depicting “guns, drugs, large
amounts of money and his sentencing sheet from his plea agreement[.]” Id.
The trial court revoked Foster’s probation and found that, while the
photographs did not prove that he violated a specific condition of his
probation, they did demonstrate his “indifference regarding his crimes” and
“clearly indicate[ed] that probation was an ineffective vehicle to accomplish
his rehabilitation[.]” Id. at 1245 (citation omitted). On appeal, this Court
affirmed the trial court’s revocation of Foster’s probation, relying upon
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language from Commonwealth v. Infante, 888 A.2d 783 (Pa. 2005), that a
probation violation is established if it is “shown that the conduct of the
probationer indicates the probation has proven to have been an ineffective
vehicle to accomplish rehabilitation and not sufficient to deter against future
antisocial conduct.” Foster, 214 A.3d at 1251 (citations omitted).
Our Supreme Court granted allowance of appeal and reversed. Id. at
1248-50. The Court explained that a probation order must specify the length
of the term and the conditions of probation at the time of sentencing and “to
attach any reasonable conditions” that “it deems necessary to insure or assist
the defendant in leading a law-abiding life.” Id. at 1248-49 (citations
omitted). Our High Court further explained that in the event of the violation
of a condition or probation, “the court cannot resentence the defendant before
it makes a finding on the record that a violation has occurred.” Id. at 1249
(citation omitted).
Additionally, the Supreme Court stated that courts may terminate or
modify the conditions of probation “at any time” and that the revocation of
probation “is sanctioned only upon proof of the violation of specified conditions
of the probation.” Id. at 1249-50. Importantly, the Court explained, that
after finding a violation and revoking probation, the trial court may only
resentence the defendant to a term of incarceration if “(1) the defendant was
convicted of a new crime; (2) the defendant’s conduct makes it likely that he
or she will commit a new crime if not incarcerated; or (3) incarceration “is
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essential to vindicate the authority of the court.” Id. at 1250 (citation
omitted).
The Supreme Court therefore held that a VOP court “must find, based
on the preponderance of the evidence, that the probationer violated a specific
condition of probation or committed a new crime to be found in violation.” Id.
at 1243. “Absent such evidence, a violation of probation does not occur solely
because a judge believes the probationer’s conduct indicates that probation
has been ineffective to rehabilitate or to deter against antisocial conduct.” Id.
Applying those principles to the facts at hand, the Supreme Court
concluded that the trial court erred in finding that Foster had violated his
probation. Id. at 1250-52. The Court explained that the sole evidence the
Commonwealth presented at the VOP hearing were the photographs and that
the VOP made no finding that Foster had violated a specific condition of his
probation or had committed a crime. Id. at 1253.
Shortly following Foster, this Court decided Commonwealth v.
Giliam, 233 A.3d 863 (Pa. Super. 2020). In that case, six days after pleading
guilty to terroristic threats with intent to terrorize and receive a sentence of
three years of probation, Giliam was arrested and charged with aggravated
assault, simple assault, and resisting arrest, after a police officer allegedly saw
him grab his girlfriend by the face and slam her against a wall.
Id. at 865.
Based on these new charges, the VOP court found Giliam violated his probation
and thus issued a revocation order and resentenced him to a term of
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incarceration. Id. at 866. Giliam, however, was subsequently acquitted of
his new charges.
Id.
On appeal to this Court, Giliam argued that we should vacate his VOP
sentence after he was acquitted of the new criminal charges underlying the
VOP determination, as the new charges were the sole basis for the VOP court’s
finding that he had violated his probation. Id. at 867. This Court determined
that “because Giliam’s violation of probation was based solely on allegations
of new criminal charges for which he was later acquitted, ultimately, no
violation of probation occurred” and consequently, his “probation revocation
sentence is void.”
Id. at 868. The VOP court, however, asserted that Giliam’s
VOP sentence should stand, as his new charges indicated that probation was
not serving the desired outcome to rehabilitate him and reflected that he was
a danger to the public.
Id. We disagreed, stating that in Foster, our Supreme
Court clarified that “a VOP court must determine whether a probation violation
actually occurred. If it did, only then the court may consider the rehabilitative
effectiveness of the probation in deciding whether to revoke the probation.”
Id. at 869.
More recently, in Commonwealth v. Berry, 323 A.3d 641 (Pa. 2024),
our Supreme Court addressed the question of whether a criminal defendant’s
prior arrests, which did not result in any convictions, were a permissible factor
for courts to consider at sentencing. Id. at 647. In that case, Berry was
convicted of several crimes related to the sexual abuse of children. Id.
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Although he had no prior convictions or juvenile adjudications, and thus a prior
record score of zero, the trial court imposed a sentence that departed
significantly upward from the standard guideline sentencing range. The trial
court cited Berry’s arrest record—which the court characterized as other
previous contacts with the criminal justice system—as a factor. Id.
Following its grant of discretionary review, the Supreme Court held that
a defendant’s arrest history, without resultant convictions, is an impermissible
factor for courts to consider at sentencing, finding it “incompatible with settled
law establishing that arrests, without convictions, simply have no value as
probative matter.” Id. at 655. Relevantly, the Berry Court explained,
As a general matter, evidence of a defendant’s arrest record is
inadmissible and irrelevant in nearly every criminal law context.
For example, evidence of a criminal defendant’s prior arrests is
inadmissible as tending to prove the defendant’s disposition to
commit crimes generally, because the fact of arrest or indictment
is quite consistent with innocence. Until 1981, there was an
exception to this rule that allowed the Commonwealth to crossexamine a defendant’s character witnesses by asking about their
knowledge of the defendant’s prior arrests, regardless of whether
those arrests culminated in a conviction. [W]e abrogated that
exception and repudiated all … the cases that endorsed or applied
the exception. Instead, we established a bright-line rule that
evidence of a defendant’s prior arrests is not admissible, even for
purposes of impeaching character witnesses, because an arrest is
equally consistent with either guilt or innocence. This prohibition
is now codified in our rules of evidence.
Id. at 648 (quotation marks, brackets, and footnotes omitted); see also id.
at 649 (“Prior arrests shed no reliable light upon criminal propensity, cannot
be used as evidence of bad character or for impeachment purposes, are not a
relevant sentencing consideration, and have no probative value for
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establishing a defendant’s likelihood of recidivism.”) (footnotes omitted). Our
High Court further expressly stated that “evidence of arrests, without
conviction, [are not] relevant in a revocation of probation and re[]sentencing
proceeding,” and a court could not draw adverse inferences from defendant’s
arrest record. Id. at 649.
Thus, to summarize, under Foster, a VOP court may revoke a
defendant’s probation only if it finds, based on the preponderance of the
evidence that the defendant: (1) violated a specific condition of his probation,
or (2) committed a new crime. Foster, 214 A.3d at 1243. Pursuant to
Giliam, we must vacate a finding that a defendant violated his probation if
the basis for the probation violation is new criminal charges and the defendant
is subsequently acquitted of those charges. Giliam, 233 A.3d at 868.
Additionally, following Berry, a defendant’s prior arrests, without resulting
convictions, is not a factor a VOP court can consider in revoking a defendant’s
probation and resentencing him. Berry, 323 A.3d at 649.
Based on the foregoing, we hold that a VOP court cannot revoke a
defendant’s probation based on a finding that he engaged in criminal conduct
for which he was never arrested, charged, and convicted. It would be entirely
at odds with Berry, to find that although a prior arrest without conviction
cannot be considered by VOP courts, uncharged criminal conduct for which
there had not even been an arrest, let alone conviction, could be the basis for
a court to revoke probation and resentence the defendant to a period of
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incarceration. See id. Moreover, to conclude otherwise requires the VOP
court to hold a trial within a trial, at which the defendant can essentially be
convicted of a crime without the constitutional protections that would be
afforded him (for example, the right to a jury trial) if he had been formally
charged with the criminal conduct alleged.
In this case, not only was Fitzgerald never convicted of harassment, he
was neither arrested nor charged with that offense. Further, the record
reflects that the trial court’s finding that Fitzgerald had committed harassment
was the sole basis for its determination that he had violated his probation.
See Trial Court Opinion, 10/31/2024, at 2. Accordingly, we conclude that the
trial court abused its discretion in finding Fitzgerald in violation of his
probation, revoking his probation, and resentencing him to a period of
incarceration.5 We therefore vacate his judgment of sentence and remand
this matter to the trial court for proceedings consistent with this decision.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
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5 In light of this determination, we need not address Fitzgerald’s remaining
issues.
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Date: 8/12/2025
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