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2025 PA Super 26
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL ANTHONY BALDASSANO :
:
Appellant : No. 298 MDA 2024
Appeal from the Order Entered February 7, 2024
In the Court of Common Pleas of Lebanon County Criminal Division at
No(s): CP-38-CR-0000734-2019
BEFORE: LAZARUS, P.J., BECK, J., and BENDER, P.J.E.
OPINION BY BECK, J.: FILED: JANUARY 29, 2025
Michael Anthony Baldassano (“Baldassano”) appeals from the order
entered by the Lebanon County Court of Common Pleas (“trial court”) revoking
his parole and recommitting him to serve the balance of his original sentence.1
Baldassano argues that the trial court wrongly revoked his parole for violating
a condition of his supervision to which he was no longer subject. Following
our careful review of the record, we agree that the trial court erred. We
therefore vacate the order revoking his parole and recommitting him.
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1 Baldassano purported to appeal from the February 20, 2024 order granting
in part and denying in part his motion for reconsideration. However,
Baldassano’s appeal lies properly from the order on February 7, 2024,
revoking his parole and recommitting him, and we have amended the caption
accordingly. See Commonwealth v. Duffy, 143 A.3d 940, 944 (Pa. Super.
2016) (holding that the thirty-day appeal period following recommitment from
the revocation of parole “commences to run when sentence is imposed at the
hearing”). We note that because Baldassano filed his notice of appeal within
thirty days of February 7, 2024, it was timely. See Pa.R.A.P. 903(a).
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A prior panel of this Court summarized the factual and procedural
histories of this case as follows:
[Baldassano] and the victim, E.B., became friends while
attending Temple University in the mid-2000s and working
together in the library. At some point, [Baldassano] wanted the
relationship to become romantic. E.B. tried gently to rebuff him
but eventually told him directly that she was not interested in that
sort of relationship with him. After E.B. graduated in 2008, she
went once with [Baldassano] to a baseball game as a friend, but
then moved away from the area. E.B. did not communicate with
[Baldassano] after that. In 2016, E.B. moved to Lebanon County
where she lived with her two children and her husband.
In May 2016, [Baldassano] began calling E.B.’s cell phone
in the early morning hours from a number with no caller ID.
Frequently, he would simply hang up. However, over the next two
years, [Baldassano] left approximately 25 voicemail messages
with threatening and foul language in which he indicated he knew
her address, made comments about her children and husband,
and threatened to kill her. E.B. recognized [Baldassano]’s voice.
In addition to telephone communications, [Baldassano] posted
pictures of himself with E.B. at the 2008 baseball game on social
media accounts that he had set up in E.B.’s name.
E.B. contacted the Annville Township Police Department
twice to alert them to [Baldassano]’s stalking and harassment
occurring by telephone and on social media, but police officers told
her the nature of the harassment and threats was not enough for
a criminal investigation. Becoming increasingly fearful, she began
to log the telephone calls and save [Baldassano]’s voicemails. On
her birthday in August of 2018, E.B. received approximately 80
hang up calls from a blocked number that police later determined
was [Baldassano]’s cell phone number.
In September 2018, E.B. again contacted the police
department. After an investigation, during which Officer Guy
Robinson, Sr., spoke with [Baldassano] regarding his behavior
over the previous two years, the Commonwealth charged
[Baldassano] with one count each of [t]erroristic [t]hreats and
[s]talking, and three counts of [h]arassment.
…
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[Following Baldassano’s trial], [t]he jury found [him] guilty
of the above crimes. On March 11, 2020, the court sentenced him
to a term of thirty days’ to four years’ incarceration. The court
directed that [Baldassano] be immediately paroled at the
expiration of his minimum sentence and ordered [him] to have no
contact, direct or indirect, with E.B. or her family.
Commonwealth v. Baldassano, 1040 MDA 2020, 2021 WL 2580633, at *1–
2 (Pa. Super. June 23, 2021) (non-precedential decision).
Of relevance to this appeal, Baldassano’s parole included following the
special conditions:
1. [Baldassano] shall undergo a drug and alcohol evaluation
and comply with all recommendations.
2. [Baldassano] shall continue to undergo mental health
treatment as directed by his mental health provider.
3. The first two years of [Baldassano]’s supervision is to be on
active supervision. The second two years of [Baldassano]’s
supervision is to be on inactive supervision. The purpose of the
second two years of [Baldassano]’s supervision is to ensure that
[he] continues not to have contact with the victim. However, it
shall not be necessary during the second two years of supervision
for [Baldassano] to pay supervision fees or otherwise comply with
the rules and regulations of the Lebanon County Probation
Department.
Sentencing Order, 3/11/2020, at 3.
On January 12, 2024, the Lebanon County Department of Probation filed
a petition alleging that Baldassano violated the terms of his parole. The
Department of Probation alleged that Baldassano violated several of its rules
and regulations, including testing positive for controlled substances,
possessing controlled substances, and recently receiving new criminal
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charges. See Petition, 1/12/2024, ¶ 4. On January 26, 2024, Baldassano
filed a motion to dismiss the Department of Probation’s petition. Baldassano
argued that his alleged parole violations occurred more than two years after
the imposition of his original sentence, during which time he was on “inactive
supervision” and not subject to the rules and regulations of the Department
of Probation. Motion to Dismiss, 1/26/2024, ¶¶ 4-12. Baldassano asserted
that the only condition of his parole during the second years of his supervision
was that he have no contact with E.B. and that he complied with that
condition. See id.
On February 7, 2024, the trial court held a Gagnon II hearing.2 At the
hearing, the Department asked to withdraw its allegations that Baldassano
violated his parole by testing positive for controlled substances and possessing
controlled substances and proceed with its allegation that he violated his
parole by obtaining new criminal charges. N.T., 2/7/2024, at 5. The trial
court therefore granted Baldassano’s motion to dismiss the allegations that he
tested positive for controlled substances and possessed controlled substances.
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2 Gagnon v. Scarpelli, 411 U.S. 778 (1973). In a Gagnon I hearing, the
Commonwealth must show probable cause that the defendant committed a
parole violation. See Commonwealth v. Ferguson,
761 A.2d 613, 617 (Pa.
Super. 2000) (explaining differences between Gagnon I and Gagnon II
hearings). In a Gagnon II hearing, the trial court then determines if the
defendant violated parole and, if so, the sentence to impose. See
id. There
was no Gagnon I hearing in this case and it is unclear from the record whether
Baldassano waived his right to such a hearing. Nonetheless, Baldassano does
not pursue this issue on appeal, and we therefore do not address it in this
decision.
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Id. The Commonwealth and the Department of Probation thus proceeded on
the sole allegation that Baldassano violated his parole by obtaining new
criminal charges.
At the conclusion of the hearing, the trial court found Baldassano to
have violated the conditions of his parole. Id. at 51. The court stated that it
found Baldassano in violation of his parole “for the reasons outlined, and
specifically relative to this for his new charges.” Id. at 51-52. The court
recommitted him to serve the balance of his original sentence and made him
eligible for parole after eighteen months.
On February 14, 2024, Baldassano filed a motion for reconsideration,
which the trial court granted in part on February 20, 2024. Although the trial
court’s grant of reconsideration made minor adjustments to Baldassano’s
sentence, including finding him RRRI-eligible if he was to serve any portion of
his sentence in state prison, the court did not alter his term of incarceration.
Baldassano timely appealed to this Court and presents the following issue for
review: “Did the trial court error [sic], commit an abuse of discretion, and/or
erroneously deny [Baldassano]’s motion to dismiss on the original filing and
for his motion for reconsideration?” Baldassano’s Brief at 2 (unnecessary
capitalization omitted).3
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3 We note with disapproval that the Commonwealth did not file an appellee’s
brief in this matter.
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Prior to addressing the issue Baldassano raises on appeal, we must
determine whether he properly preserved it for our review. On March 1, 2024,
the trial court ordered Baldassano to file a concise statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure
1925(b) within twenty-one days, informing him that his failure to comply with
the order would result in waiver of the issues he sought to raise on appeal. In
the appendix of his appellate brief, Baldassano included a time-stamped copy
of his Rule 1925(b) statement, which he filed on June 18, 2024. See
Baldassano’s Brief at A.5. Baldassano’s counsel claims that the untimeliness
of the Rule 1925(b) statement was the result of Baldassano’s March 5, 2024,
petition to proceed pro se, which the trial court ultimately denied following a
Grazier4 hearing. See Baldassano’s Brief at 5-6.
Initially, therefore, we must ascertain whether Baldassano’s failure to
timely file his Rule 1925(b) concise statement has waived the issue he has
raised for our review. “This Court has held that both the complete failure to
file the 1925(b) statement ... and the untimely filing of a 1925(b) statement
is per se ineffectiveness because it is without reasonable basis designed to
effectuate the client’s interest and waives all issues on appeal.”
Commonwealth v. Sanchez-Frometa, 256 A.3d 440, 442-43 (Pa. Super.
2021) (quotation marks, citation, and brackets omitted). “While these
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4 Commonwealth v. Grazier,
713 A.2d 81 (Pa. 1998).
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circumstances often require a remand, where the trial court addresses the
issues raised in an untimely Rule 1925(b) statement, we need not remand but
may address the issues on their merits.” Id. at 443 (quotation marks,
citation, and brackets omitted).
Here, we determine that Baldassano’s counsel was per se ineffective in
failing to file a timely Rule 1925(b) statement. Though the trial court’s Rule
1925(a) opinion mentioned Baldassano’s failure to comply with Rule 1925(b),
it nonetheless addressed the issue he now seeks to raise on appeal. See Trial
Court Opinion, 3/11/2024, at 2-4. Accordingly, because we can glean from
the record why the trial court found Baldassano in violation of his parole, we
need not remand this case for the preparation of a supplemental Rule 1925(a)
opinion and do not find the claim before this Court waived. See Sanchez-
Frometa, 256 A.3d at 443. We therefore proceed to review the merits of
Baldassano’s appeal.
Baldassano argues that the trial court erred in finding him in violation
of his parole. See Baldassano’s Brief at 7-10. Specifically, Baldassano
contends that his alleged parole violation, i.e., obtaining new criminal charges,
occurred more than two years after the imposition of his original sentence,
during which time he was on “inactive supervision.” Id. at 9-10. Although
he concedes that obtaining new criminal charges violated the rules and
regulations of the Lebanon County Department of Probation, he contends that
he was explicitly not subject to those rules during the last two years of his
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supervision and thus, the trial court could not find him in violation of his parole
on that basis. Id.
In reviewing a challenge to the revocation of parole, this Court has
stated:
[T]he purposes of a court’s parole-revocation hearing—the
revocation court’s tasks—are to determine whether the parolee
violated parole and, if so, whether parole remains a viable means
of rehabilitating the defendant and deterring future antisocial
conduct, or whether revocation, and thus recommitment, are in
order. The Commonwealth must prove the violation by a
preponderance of the evidence and, once it does so, the decision
to revoke parole is a matter for the court’s discretion
Commonwealth v. Kalichak, 943 A.2d 285, 290-91 (Pa. Super. 2008)
(citations omitted). “Following parole revocation and recommitment, the
proper issue on appeal is whether the revocation court erred, as a matter of
law, in deciding to revoke parole and, therefore, to recommit the defendant
to confinement.”
Id. at 291.
Importantly, our Supreme Court has stated that “parole may be revoked
only after a court finds the defendant has violated an actual condition for which
he had notice.” Commonwealth v. Koger, 295 A.3d 699, 707 (Pa. 2023);
see also Pa.R.Crim.P. 708(B)(2) (“the judge shall not revoke … parole …
unless there has been ... a finding of record that the defendant violated a
condition of” it).
The record reflects that Baldassano was to serve his original term of
incarceration at the Lebanon County Correctional Facility and his period of
parole under the supervision of the Lebanon County Department of Probation.
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Sentencing Order, 3/11/2020, at 2. In Koger, our Supreme Court stated that
the Pennsylvania Department of Probation and Parole does not “have authority
in county parole cases to provide general rules of parole outside that of the
court.” Koger, 295 A.3d at 710 (citation omitted). The Supreme Court
explained that “[u]nlike with county parole cases, the Prisons and Parole Code,
61 Pa.C.S. §§ 101-7301, contains far more detailed procedures regarding
state parole.” Id. The Court further explained that where a case involves a
county sentence and thus, county parole, “the sentencing judge was the one
with jurisdiction over his parole.” Id. at 711 (citing 42 Pa.C.S. § 9775 (where
the sentencing court grants county parole, “parole shall be without supervision
by the board”); 61 Pa.C.S. § 6132(a)(2)(ii) (“powers and duties” of the
Pennsylvania Department of Probation and Parole “shall not extend … to those
persons committed to county confinement”)).5
Thus, with respect to the conditions of his parole, as his original
sentence was a county sentence with county parole and there was no special
order directing supervision by the Pennsylvania Department of Probation and
Parole, Baldassano would generally only be subject to the special conditions
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5 The Koger Court noted that there is an exception to this rule that permits
a sentencing court “by special order [to] direct supervision by the [board], in
which case the parole case shall be known as a special case and the authority
of the [board] with regard thereto shall be the same as provided in this
chapter.” Koger, 295 A.2d at 711 (brackets in original) (quoting 61 Pa.C.S.
§ 6171(a)(4)). The record in the case at bar reflects that the trial court did
not enter such an order.
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set forth by the sentencing court and the general rules and regulations of
Lebanon County Department of Probation during his supervision. See Koger,
295 A.3d at 710-11; see also 61 Pa.C.S. §§ 6132(a)(2)(ii), 6171(a)(4). In
this case, however, Baldassano’s original sentencing order expressly stated
that for the final two years of his supervision, he was on “inactive supervision”
and that “it shall not be necessary … to pay supervision fees or otherwise
comply with the rules and regulations of the Lebanon County Probation
Department.” Sentencing Order, 3/11/2020, at 3. Thus, pursuant to the plain
language of the sentencing order, for the last two years of Baldassano’s period
of parole, he was subject solely to the special conditions contained in his
sentencing order—compliance with a drug and alcohol evaluation and any
treatment recommendations; compliance with mental health treatment; and
no contact with E.B.
The record further reflects that the trial court granted Baldassano’s
motion to dismiss the allegations that he tested positive for controlled
substances and possessed controlled substances allegations, thus leaving the
claim related to the new criminal charges as the sole allegation that
Baldassano had violated his parole. There is no question that obtaining new
criminal charges would be a violation of Rule 4 of the Lebanon County
Department of Probation. See Parole Violation Order, 2/7/2024, Appendix
(Lebanon County General Conditions of Probation/Parole) 4. There is likewise
no dispute, however, that Baldassano obtained these new criminal charges
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during the second two years of his supervision—the time during which his
original sentencing order expressly stated that he was not subject to the rules
and regulations of the Lebanon County Department of Probation. See
Sentencing Order, 3/11/2020, at 3; see also Motion to Dismiss, 1/26/2024,
¶¶ 4-12. Therefore, because the basis of the revocation of Baldassano’s parole
was the violation of one of the rules of the Lebanon County Department of
Probation, i.e., obtaining new criminal charges, and (per his original
sentencing order) he was not subject to those rules at time he committed the
violation, the trial court impermissibly revoked his parole based on the
violation of a condition to which he was not subject, and thus, of which he was
not aware, at that time. See Koger, 295 A.3d 699, 707. We therefore
conclude that the trial court erred in revoking his parole.6
As stated above, we recognize that ordinarily, the commission of a crime
is grounds for revoking parole. See Parole Violation Order, 2/7/2024,
Appendix (Lebanon County General Conditions of Probation/Parole) 4
(requiring parolees to comply with all municipal, county, state, and federal
criminal laws). Additionally, if the trial court had confined Baldassano to a
term of incarceration at a state correctional institution or issued a special order
directing supervision by the Pennsylvania Department of Probation and Parole,
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6 Indeed, the trial court recognized that this outcome was possible. See Trial
Court Opinion, 3/11/2024, at 3 (stating that if the trial court “incorrectly
determined that a new criminal offense when on parole, but unsupervised is
a violation; the sentence here should be dismissed” on appeal).
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it could have revoked his parole for committing a crime. See 61 Pa.C.S.
§ 6138(a)(1) (stating that the Pennsylvania Department of Probation and
Parole “may, at its discretion, revoke the parole of a paroled offender if the
offender, during the period of parole … commits a crime punishable by
imprisonment”). Baldassano, however, was neither subject to supervision of
the Pennsylvania Department of Probation and Parole nor bound to comply
with the parole rules and regulations set forth by Lebanon County.
Thus, under the extraordinarily unique facts and circumstances of this
case, in which Baldassano was under the supervision of county parole and his
original sentencing order stated that he was not subject to the rules and
regulations of the Lebanon County Department of Probation during the second
two years of his supervision, the only manner in which he could have violated
his parole during that time was if he violated one of the three special
conditions set forth in his original sentencing order.7 See id.; see also
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7 We note that there was ample evidence to revoke Baldassano’s parole on
the basis that he violated the first two special conditions of his parole—that
he “shall undergo a drug and alcohol evaluation and comply with all
recommendations” and that he “shall continue to undergo mental health
treatment as directed by his mental health provider.” See Sentencing Order,
3/11/2020, at 3. Neither of these two special conditions were limited to the
first two years of his supervision. See id. The transcript of the Gagnon II
hearing is replete with evidence that he has failed to comply with either
requirement. See N.T., 2/7/2024, at 25-40. Nonetheless, the
Commonwealth and the Lebanon County Department of Probation and Parole
chose only to proceed on the allegation that he violated his parole by
committing a new crime, and therefore, his violation of these two special
conditions does not provide a basis for our affirmance of the trial court’s
decision.
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Sentencing Order, 3/11/2020, at 3. As the Commonwealth failed to proceed
on an allegation that he violated any of the three special conditions, we must
therefore conclude that the trial court erred in revoking his parole.
Based on the foregoing, we are constrained to vacate the order revoking
Baldassano’s parole and recommitting him to serve the balance of his original
sentence, and we remand this matter to the trial court for proceedings
consistent with this decision.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 1/29/2025
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