[J-60-2022]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                               WESTERN DISTRICT

      TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.


 COMMONWEALTH OF PENNSYLVANIA,                    :   No. 15 WAP 2022
                                                  :
                      Appellant                   :   Appeal from the Order of the
                                                  :   Superior Court entered June 4,
                                                  :   2021 at No. 251 WDA 2020,
               v.                                 :   reversing the revocation of
                                                  :   probation and parole and vacating
                                                  :   the Judgment of Sentence of the
 CHRISTOPHER ALBERT KOGER,                        :   Court of Common Pleas of
                                                  :   Washington County entered
                      Appellee                    :   January 22, 2020 at No. CP-63-CR-
                                                  :   0000233-2018.
                                                  :
                                                      ARGUED: October 25, 2022

OPINION

JUSTICE DOUGHERTY                                                DECIDED: MAY 16, 2023
       In Commonwealth v. Foster, 

 (Pa. 2019), this Court examined the

statutory framework governing probation revocations and concluded that, under the “clear

and unambiguous” language of 42 Pa.C.S. §9771(b) (Modification or revocation of order

of probation) and 42 Pa.C.S. §9754(b) (Order of probation), “a court may find a defendant

in violation of probation only if the defendant has violated one of the ‘specific conditions’

of probation included in the probation order or has committed a new crime.” Foster, 214

A.3d at 1250. The present case is not about probation; it is about parole. Purporting to

rely on certain passages from Foster and the statutes we examined in that decision, the

Superior Court below held “a sentencing court may not delegate its statutorily pr[e]scribed

duties” but must instead personally “communicate any conditions of probation or parole
as a prerequisite to violating any such condition.” Commonwealth v. Koger, 

 (Pa. Super. 2021) (emphasis added). We granted the Commonwealth’s

petition for allowance of appeal to consider whether the Superior Court improperly

expanded Foster in this regard. As we conclude it did, we reverse in part.

        Appellee Christopher Albert Koger pleaded guilty on August 21, 2018, to one count

each of possession of child pornography and criminal use of a communication facility.1

The charges stemmed from “child pornography [that] had been found on [his] cellular

telephone” by his daughter, who alerted law enforcement. N.T. Guilty Plea Hearing,

8/21/18 at 7. The trial court accepted appellee’s guilty plea and imposed eight to twenty-

three months’ incarceration for possession of child pornography and a consecutive term

of three years’ probation for criminal use of a communication facility. Additionally, “[a]s

special conditions of this sentence,” the court ordered appellee to “have no contact with

any victims or persons displayed in the images. [He] shall submit to a drug and alcohol

evaluation and complete any recommended treatment; perform 100 hours of [c]ommunity

[s]ervice[;] and complete sexual offender counseling.” Id. at 17.

        After being awarded credit for time served, appellee was immediately paroled to

the supervision of the Washington County Adult Probation Office.2 Relevant here, “[i]n

accordance with long standing procedures in Washington County, the trial court . . . did

not advise [appellee] of the general conditions of his probation or parole at the time of

sentencing. Rather, the general rules, regulations, and conditions governing probation

1   See 18 Pa.C.S. §6312(d) and §7512(a).
2  Where, as here, the total sentence imposed is less than two years, the Sentencing
Code gives parole authority to the sentencing judge. See 42 Pa.C.S. §9776(a) (“Except
as otherwise provided under this chapter or if the Pennsylvania Parole Board has
exclusive parole jurisdiction, a court of this Commonwealth . . . may, after due hearing,
release on parole an inmate in the county correctional institution of that judicial district.”).
If a sentencing court “paroles [an] inmate, it shall place the inmate in the charge of and
under the supervision of a designated probation officer.” Id. §9776(d).


                                       [J-60-2022] - 2
and parole in Washington County were explained to [appellee] by an adult probation

officer immediately following the sentencing proceeding.” Trial Court Letter, 5/6/21

at 1 (emphasis added). Appellee signed and was “provided [with] a copy of the rules[.]”

N.T. Revocation Hearing, 11/4/19 at 9.

       Only weeks later, appellee violated the terms of his release. A revocation petition

alleged that, “[o]n September 14, 2018, [he] was in possession of pornographic [ ] and

sexually perverse material in violation of [his] sex offenders[’] program.” First Petition for

Revocation of Probation or Parole, 10/4/18 at 2.3 At a subsequent revocation hearing,

appellee acknowledged he “committed a violation of [his] parole and probation.” N.T.

Revocation Hearing, 12/21/18 at 8. “Based upon the stipulation[,]” the trial court revoked

appellee’s parole and probation and remanded him to serve the balance of his maximum

sentence on count one, with the privilege of work release, and on the condition he was to

be re-paroled on June 21, 2019. Id. at 8-9. As for count two, “[e]ven after [appellee]

stipulated to being in technical violation of his probation, the [c]ourt, nevertheless, gave

[him] a second chance to make meaningful progress towards his rehabilitation without

having to resort to state incarceration, and merely reinstated his probation for a period of

three years.” Trial Court Opinion, 5/26/20 at 22.

       “However,” appellee “continued to violate [the] terms” of his supervision within

weeks of being re-released. Id. According to a second parole and probation revocation

petition filed on September 16, 2019, appellee violated the following conditions of his

supervision shortly after being re-paroled on June 21, 2019:

       Condition #1: Report to your [probation officer (“PO”)] as directed and permit
       a PO to visit you at your residence or place of employment and submit to
       warrantless searches of your residence, vehicle, property, and/or your

3Providing just one example, the revocation petition described a “chat dialog” in which
appellee stated to another, “I’ve done 8 but they aren’t developed enough to cum.” First
Petition for Revocation of Probation or Parole, 10/4/18 at 2.


                                       [J-60-2022] - 3
       person and the seizure and appropriate disposal of any contraband found.
       ...

       Condition #2: Do not violate any criminal laws or ordinances. . . .

       Condition #7: Refrain from any assaultive, threatening or harassing
       behavior. . . .

       Condition #10: Avoid unlawful and disreputable places and people. Avoid
       any specific persons, places, groups, or locations if so instructed by your
       PO. . . .
Second Petition for Revocation of Probation or Parole, 9/16/19 at 2.4

       In addition to providing a brief factual summary in support of each alleged violation

within the petition itself, see id., Probation Officer Jeremy Bardo (“PO Bardo”) also

testified to appellee’s infractions at a hearing. PO Bardo explained how, on July 16, 2019,

he and another probation officer visited appellee’s residence and performed a search of

appellee’s bedroom. Although appellee “was calm initially,” once the officers asked to

see his cell phone he “cl[e]nched, tightened up, held the phone, [and] turned away.” N.T.

Revocation Hearing, 11/4/19 at 9-10. Appellee “was trembling, shaking, real nervous,

[and] real defensive[,]” and he told the officers they “weren’t allowed to look through the

phone.” Id. at 9. The situation escalated and the officers had to use force to detain him.

Ultimately, the officers determined they “should put him in custody due to [their] safety,

and his safety.” Id. at 10.

       During transport to the Washington County Correctional Facility, PO Bardo asked

appellee for the passcode to unlock his cell phone, which appellee eventually provided.

Appellee then confirmed there “might be” pornographic material on his phone. Id. at 7.




4The Commonwealth never produced or admitted into evidence the rules provided to and
signed by appellee following sentencing, so they are not in the certified record. It is thus
unclear whether the “conditions” discussed above are verbatim reproductions of the rules
or summaries thereof.


                                      [J-60-2022] - 4
Upon examining the phone, PO Bardo found messages between appellee and “a female

who identified herself as Jessica, 15 years old.” Id. at 14. PO Bardo elaborated he saw

       [t]ext[s], pictures. . . . I saw enough in the texts. [Appellee] also sent a
       picture of himself and identified himself, his age. Presently he is 46 years
       old, and also there was a picture of [the fifteen-year-old female] without any
       clothes on pleasuring herself.
Id. at 15. In PO Bardo’s view, “[i]t appeared in the messages [appellee] was grooming

[the minor] with conversation, her past life, relationships with family, his personality, [and]

romance.” Id.

       PO Bardo also testified about what occurred once they arrived at the jail. He

explained he overheard appellee say, “You’re fucking with the wrong German.” Id. at 9.

PO Bardo asked appellee to whom he was speaking and whether he was threatening to

fight the officers. Appellee responded, “not you, but him,” referring to another officer. Id.5

       Finally, PO Bardo detailed a prior incident during which appellee was removed

from a community service office for “using vulgar language and being disrespectful with

staff[.]” Id. at 8. On that occasion, appellee became agitated after he was confronted for

having a prohibited “cell phone while working at the [Furlough Into Service (“FITS”)]

program.” Id. at 7-8.6

       At the conclusion of the revocation hearing, the trial court determined appellee had

“violated his parole and probation by committing technical violations thereof, and his


5 The court did not credit appellee’s explanation at the revocation hearing that his threat
to “fight” the other officer was actually “about fighting him [on] the law.” N.T. Revocation
Hearing, 11/4/19 at 23. We also observe appellee’s counsel acknowledged, “If the [c]ourt
finds that that is threatening bodily harm, then I could see a revocation[.]” Id. at 32.
6 The FITS program “allows [p]articipants incarcerated at W.C.C.F. the opportunity to
reduce” their court-related financial obligations by permitting them “to perform large-scale
projects on weekends and smaller projects on weekdays.” Community Services,
WASHINGTON CTY. COURTS, https://www.washingtoncourts.us/170/Community-Services
(last visited May 1, 2023).



                                       [J-60-2022] - 5
parole and probation [were t]hereby revoked.” Id. at 34. In its Pa.R.A.P. 1925(a) opinion,

the court explained that, based on PO Bardo’s testimony — which the court found “to be

unbiased and extremely credible” — “the Commonwealth provided sufficient evidence to

sustain [appellee]’s parole and probation revocation and established each specific

violation thereof by a preponderance of the evidence.” Trial Court Opinion, 5/26/20 at

14, 18 (emphasis added).7

       Having revoked appellee’s parole and probation for the second time, the trial court

proceeded to resentence him on January 22, 2020. With respect to count one, the court

ordered appellee “remanded to [a] state correctional institution to serve the balance of his

maximum sentence.” N.T. Resentencing Hearing, 1/22/20 at 24. Regarding count two,

the court expressed its view that, “[c]learly, [appellee]’s probation was no longer achieving

its desired aims of rehabilitation and deterring criminal activity.” Trial Court Opinion,

5/26/20 at 22. “Therefore, instead of reinstating a probation sentence for a third time,”

the court “determined that a sentence of incarceration was necessary in order to vindicate

[its] authority.” Id. at 22-23. Accordingly, the court imposed a consecutive sentence of

one to three years’ state imprisonment.



7 Notwithstanding the trial court’s statement in its opinion that it determined each specific
violation had been proven, it made no mention of Condition #10, in which PO Bardo
alleged appellee failed to “[a]void unlawful and disreputable places and people” by being
“in possession of sexually perverse material and dialogue with a fifteen year old female
on his cellular phone.” Second Petition for Revocation of Probation or Parole, 9/16/19 at
2. In any event, the court clearly found appellee had violated the other conditions alleged,
including two violations of Condition #7 regarding threatening or assaultive behavior.
See, e.g., Trial Court Opinion, 5/26/20 at 15 (appellee’s “statement at the sally port, alone,
provided . . . sufficient evidence to revoke”); id. (crediting Officer Bardo’s description of
the incident at the community service office); id. at 17 (concluding appellee violated
Condition #1 because he “refused to submit to a warrantless search and seizure of his
cell phone”); id. at 18 (finding appellee “in direct violation of Condition [#]2” based on “the
messages and photographs [PO Bardo] personally observed between [appellee] and a
fifteen-year-old child” on appellee’s cell phone).


                                       [J-60-2022] - 6
      Appellee filed a timely appeal. He challenged the sufficiency of the evidence

supporting the revocation of both his parole and probation, as well as the legality of his

newly imposed sentence. As appellee saw it, the evidence was insufficient to support

either revocation because the Commonwealth failed to present any “evidence of what the

actual terms and conditions” of his supervision were. Appellee’s Superior Court Brief at

17. Put differently, appellee believed the Commonwealth needed to introduce a copy of

the rules he signed immediately after sentencing, and he argued the revocation petition’s

ostensible recitation of those conditions — even when considered alongside PO Bardo’s

credited testimony that appellee personally signed and was given a copy of the conditions

of his parole — was not enough to prove appellee was subject to them by a

preponderance of the evidence.         See id. (positing without such evidence, “the

Commonwealth could not, by necessity, prove [he] had violated” any terms or conditions

of his supervision).   The Commonwealth, in contrast, argued appellee’s sufficiency-

related claims were waived because they are really due process challenges, and at no

time during the revocation hearing did appellee ever “object[ ] to any failure to establish

the conditions of supervision.” Commonwealth’s Superior Court Brief at 8. In any event,

the Commonwealth contended it produced sufficient evidence because the revocation

petition “clearly indicates the conditions and alleged violations” and, regardless, it was

“unable to locate any case law” requiring it to produce the actual signed conditions. Id.;

see also Trial Court Opinion, 5/26/20 at 26 (rejecting argument appellee was unaware of

his alleged violations because “[n]ot only did Officer Bardo include [in the revocation

petition] the particular numeric conditions [appellee] allegedly violated, but he also

provided specific examples and dated events” relevant to each violation).

      A three-judge panel of the Superior Court remanded with instructions. The panel

explained it was “unable to determine whether the sentencing court, on August 21, 2018,




                                     [J-60-2022] - 7
imposed the conditions [appellee] has now been found to have violated.” Commonwealth

v. Koger, 

, at *3 (Pa. Super. 2021) (unpublished memorandum). So, it

remanded “for the trial court to prepare a supplemental opinion addressing whether it

imposed, or advised [appellee] of, the terms of his probation and parole at the time of the

initial sentencing.” Id. at *1. The trial court responded with the letter cited earlier, in which

it candidly acknowledged the parole and probation requirements “were explained to

[appellee] by an adult probation officer immediately following the sentencing proceeding.”

Trial Court Letter, 5/6/21 at 1.

         When the case returned to the Superior Court, it reversed appellee’s parole and

probation revocations and vacated his new judgment of sentence. In a published opinion

authored by Judge McCaffery and joined by President Judge Emeritus Bender and Judge

Lazarus, the court held that, “because the [trial] court did not advise [appellee] of the

conditions of his probation and parole at the time of the initial sentencing, the court could

not have found he violated these conditions.” Koger, 

. As Foster was

central to the Superior Court’s holding, we pause briefly here to examine our decision

there.

         We granted discretionary review in Foster to consider whether the Superior Court

erred by “ignoring the governing statute and due process protections” when it sanctioned

the revocation of Foster’s probation based solely on his offensive social media posts,

even though the terms of his probation made no such proscription. Foster, 214 A.3d at

1245-46. In concluding it did so err, we “resolved [the case] through our rules of statutory

construction,” rendering it unnecessary to “address Foster’s due process claim.” Id. at

1247 n.8. We explained:

         We find the language of the pertinent statutory provisions to be clear and
         unambiguous. The law provides a general condition of probation — that the
         defendant lead “a law-abiding life,” i.e., that the defendant refrain from
         committing another crime. [42 Pa.C.S ]§9754(b). To insure that general


                                        [J-60-2022] - 8
      condition is met, or to assist the defendant in meeting that general condition,
      the order must also include certain “specific conditions” from the list
      enumerated in section 9754(c). Only upon the violation of any of the
      “specified conditions” in the probation order (general or specific) may a court
      revoke the defendant’s probation. Id. §9771(b). In other words, a court may
      find a defendant in violation of probation only if the defendant has violated
      one of the “specific conditions” of probation included in the probation order
      or has committed a new crime. The plain language of the statute does not
      allow for any other result.
Id. at 1250. Foster thus settled “what constitutes a permissible basis for a court to find

an individual in violation of probation”: a 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.

      Returning to this case, the Superior Court in a footnote acknowledged Foster dealt

exclusively with “probation revocations and not parole[.]” Koger, 

 n.6.

However, it reasoned that since Foster cited “language in Morrissey v. Brewer, 

 (1972)” — wherein the High Court held due process requires states to afford some

opportunity to be heard prior to revoking an individual’s parole — it was appropriate to

“review violations of probation and parole under the same standard.” 

 Based on that

understanding, the court made the following two attempts to bring the processes for

parole and probation revocations into parity.

      First, the Superior Court bracketed the phrase “or parole” directly into Foster’s

language. It stated: “Because the trial court did not impose, at the time of the August 21,

2018, sentencing any specific probation or parole conditions, the court could not have

found he ‘violated one of the specific conditions of probation [or parole] included in the

probation order[.]’” Id. at 1291 (bracketed material in original; emphasis added), quoting

Foster, 214 A.3d at 1250; see also id. at 1289-90 (making same bracketed insertion two

additional times). Second, while citing 42 Pa.C.S. §9754(b), the court used an ellipsis in

a manner that removed any reference to the “conditions of probation” to which the statute




                                     [J-60-2022] - 9
refers. Compare Koger, 

 (“The court shall attach such of the reasonable

conditions . . . as it deems necessary to insure or assist the defendant in leading a law-

abiding life.”) (internal quotations, citation, and emphasis omitted; ellipsis in original) with

42 Pa.C.S. §9754(b) (“The court shall attach reasonable conditions authorized by section

9763 (relating to conditions of probation) as it deems necessary to ensure or assist the

defendant in leading a law-abiding life.”).8 It then relied on that abridged version of the

statute to hold “a sentencing court may not delegate its statutorily pr[e]scribed duties to

probation and parole offices and is required to communicate any conditions of probation

or parole as a prerequisite[.]” Koger, 

 (emphasis added).

       At the Commonwealth’s request, we granted allowance of appeal to determine

whether the Superior Court “err[ed] in expanding this Court’s holding in [Foster], and the

statutory requirements related to probation conditions under 42 Pa.C.S. §9754[,] to not

only probation but also parole cases[.]” Commonwealth v. Koger, 

 (Pa.

2022) (per curiam).9 This presents a question of law involving statutory interpretation,

“for which our scope of review is plenary and our standard of review is de novo.” Foster,

214 A.3d at 1247.

       Upon our review, we conclude the Superior Court erred. We begin by emphasizing

Foster “present[ed] a question of statutory interpretation[.]” Id. More precisely, it required


8 Section 9754 was amended effective December 18, 2019, shortly after appellee’s parole
and probation were revoked the second time. See Pub. L. 776, No. 115, §4. The version
in effect when his supervision was initially imposed read: “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) (former). Thus, the amendment simply removed the applicable “conditions of
probation” from subsection (c) of Section 9754, and all conditions are now found within
42 Pa.C.S. §9763(b).
9 The Commonwealth now agrees the Superior Court’s reversal of appellee’s probation
revocation was “in line with this Court’s holding in Foster.” Commonwealth’s Brief at 18.
Consequently, we are only concerned here with the propriety of his parole revocation.


                                       [J-60-2022] - 10
us to examine several statutes — notably, 42 Pa.C.S. §9771 and §9754 — which relate

exclusively to probation, not parole. In conducting our analysis, we explained the plain

terms of Section 9771, titled “Modification or revocation of order of probation,” clearly

provide that “[r]evocation of probation . . . is sanctioned only ‘upon proof of the violation

of specified conditions of the probation.’” Id. at 1250 (emphasis omitted), citing 42 Pa.C.S.

§9771(b). In turn, “[u]nder the heading ‘[c]onditions generally,’ [S]ection 9754 requires

the sentencing court to attach any ‘reasonable conditions . . . as it deems necessary to

insure or assist the defendant in leading a law-abiding life.’” Id. at 1249, citing 42 Pa.C.S.

§9754(b) (former). As we expounded in Foster, although this latter statute generally

requires the court to attach the conditions of probation, this Court has also “recognized

that probation officers may, consistent with their [own] statutory authority, impose specific

conditions of supervision pertaining to [a] defendant’s probation . . . ‘in furtherance of the

trial court’s conditions of probation.’” Id. at 1244 n.5, quoting Commonwealth v. Elliott, 

 (Pa. 2012).

       Here, the Superior Court did not engage in a statutory analysis. Instead, its only

justification for expanding Foster to cover parole cases was its explanation that, “as the

trial court state[d],” the Foster Court “relied on language in Morrissey” and, thus, “the

same standard” applies to violations of probation and parole. Koger, 

n.6. And, the trial court itself explained:
       Although Foster specifically addresse[d] the requirements for a probation
       revocation, not a parole revocation, the Pennsylvania Supreme Court
       reached its decision, in part, based on the language in the seminal decision,
       Morrissey v. Brewer, 

 [sic] (1971). Foster, 214 A.3d at
       1248. In Morrissey, the United States Supreme Court addressed the
       requisites needed to find a defendant in violation of his parole, stating that
       “the first step in a revocation decision . . . involves a wholly retrospective
       factual question: whether the parolee has in fact acted in violation of one or
       more conditions of his parole.” Id. at 479-80. Therefore, it is this [c]ourt’s
       interpretation that a court may only find a defendant to be in violation of
       either parole or probation, if it is established by the Commonwealth, by a



                                      [J-60-2022] - 11
       preponderance of the evidence, that a defendant violated one of the
       “specific conditions” of his parole or probation, or committed a new crime.
       Foster, 214 A.3d at 1250.
Trial Court Opinion, 5/26/20 at 13.

       As a matter of due process, which is all that was at issue in Morrissey, we have no

reason to quarrel with the trial court’s conclusion parole may be revoked only after a court

finds the defendant has violated an actual condition for which he had notice. See, e.g.,

Morrissey, 

 (“Implicit in the system’s concern with parole violations is the

notion that the parolee is entitled to retain his liberty as long as he substantially abides by

the conditions of his parole.”). In fact, even as a matter of state law, the idea parole can

be revoked only after a violation of its terms has been proven is quite unremarkable. See

Pa.R.Crim.P. 708(B)(2) (“the judge shall not revoke” county parole “unless there has been

. . . a finding of record that the defendant violated a condition of” it); 42 Pa.C.S. §9776(e)

(“The court may, on cause shown by the probation officer that the inmate has violated his

parole, recommit . . . the inmate[.]”). Accordingly, had the Superior Court gone only as

far as the trial court in this regard, its minor tinkering with our language in Foster may

have been tolerable. The problem is it went further and, in so doing, “seized one bridge

too far.” Commonwealth’s Brief at 19.

       Aside from bracketing in the words “or parole,” the Superior Court used an ellipsis

to pave over the problematic parts of Section 9754 referring only to probation conditions.

It then cited that altered authority and accused the trial court of wrongly “delegat[ing] its

statutorily pr[e]scribed duties” relative to appellee’s parole conditions. Koger, 

. And the Superior Court relied on its own judicially modified version of the statute

to support its new rule that “a sentencing court . . . is required to communicate any

conditions of . . . parole as a prerequisite” to revocation. 

 To state the obvious, this

was improper and violated the most basic tenets of statutory construction. See, e.g.,

Commonwealth v. McCoy, 

 (Pa. 2009) (courts “are not permitted to


                                      [J-60-2022] - 12
ignore the language of a statute”); 1 Pa.C.S. §1921(a) (“Every statute shall be construed,

if possible, to give effect to all its provisions.”); id. §1921(b) (“When the words of a statute

are clear and free from all ambiguity, the letter of it is not to be disregarded under the

pretext of pursuing its spirit.”).

       Section 9754, as its title and text make plain, has absolutely no bearing on parole.

Moreover, as the Commonwealth correctly points out, “[n]either this Court’s decision in

Foster nor Section 9754 impose an independent, non-statutory mandate in parole cases

that a judge specify the conditions of parole at the time of sentenc[ing].” Commonwealth’s

Brief at 18. Indeed, while constitutional principles like due process may in some ways

offer similar protections to probation and parole revocations, it is, at the end of the day,

the General Assembly’s prerogative to authorize whatever conditions for probation and

parole that it sees fit, and to permit them to be relayed to the defendant by some entity

other than the trial court at the time of sentencing. See Morrissey, 

 (“We

cannot write a code of procedure; that is the responsibility of each State.”).

       Respecting probation in this Commonwealth, the General Assembly has instructed

that “[t]he court shall attach reasonable conditions authorized by section 9763 (relating to

conditions of probation) as it deems necessary to ensure or assist the defendant in

leading a law-abiding life.” 42 Pa.C.S. §9754(b). This is the default rule. However, we

have also held “the Board and its agents may impose conditions of supervision that are

germane to, elaborate on, or interpret any conditions of probation that are imposed by the

trial court.” Elliott, 

; see 

 (“a trial court may impose conditions of

probation in a generalized manner, and the Board or its agents may impose more specific

conditions of supervision pertaining to that probation, so long as those supervision

conditions are in furtherance of the trial court’s conditions of probation”). Taken together,




                                       [J-60-2022] - 13
then, Section 9754 and our interpretive decision in Elliott (as well as Foster) provide a full

framework for imposing conditions of probation.

       Yet, “[u]nlike probation conditions, there is no equivalent mandate regarding the

conditions of parole[.]” Commonwealth’s Brief at 18. Particularly for county parole cases

like this, appellee has not directed us to, and we have been unable to find, any statutory

limitations within the Sentencing Code regarding who may impose parole conditions, the

permissible conditions that may be imposed, or the time for imposing them. In fact, the

only relevant statutory authority we have found, Section 9776 of the Sentencing Code,

does not operate to restrict such powers; it enlarges them. It specifically directs that in a

county parole case, the trial court “shall place the inmate in the charge of and under the

supervision of a designated probation officer.” 42 Pa.C.S. §9776(d) (emphasis added).

The phrase “in the charge of” is significant, insofar as it must mean something different

than the “under the supervision of” phrase that directly follows it. See Commonwealth by

Shapiro v. Golden Gate Nat’l Senior Care LLC, 

 (Pa. 2018) (“When

interpreting a statute, courts must presume that the legislature did not intend any statutory

language to exist as mere surplusage; consequently, courts must construe a statute so

as to give effect to every word.”). In our view, the difference is obvious: the former phrase

places parolees “in the charge of” a county probation officer, which necessarily includes

the authority to impose parole conditions in addition to the trial court, whereas the latter

phrase indicates the officers are also then responsible for “the supervision of” the parolee

and his or her compliance with all conditions imposed.

       Of course, the Superior Court did not discuss this (or any other) statute relating to

parole. Rather, the lower court essentially determined — incorrectly — that Foster was

grounded in principles of due process that apply equally to probation and parole, thereby

giving it license to fiddle with our holding and selectively quote portions of an inapplicable




                                      [J-60-2022] - 14
statute to support its expansion of the law. As discussed, however, Foster was nothing

more than a case of statutory construction pertaining to probation; our passing mention

of Morrissey, a parole case, was in no way intended to suggest that, in all respects and

notwithstanding state statutes and rules to the contrary, courts must “review violations of

probation and parole under the same standard.” Koger, 

 n.6. In short,

the Superior Court’s extension of Foster and its attendant statutes to also cover parole

revocations assumed too much. And, since no statutory counterpart to Section 9754

exists with respect to the imposition of county parole, and in light of Section 9776, we

conclude that sentencing courts are authorized to delegate to county probation officers

the responsibility of communicating to defendants the conditions of their parole, and to do

so post-sentencing.10

10  The concurrence argues we go too far in resolving the delegation issue, but we
disagree. Contrary to the concurrence’s belief we have raised the issue sua sponte and
that it was “never discussed in the lower courts[,]” Concurring Opinion at 6, the Superior
Court unequivocally held, in a published opinion of first impression, that “a sentencing
court may not delegate its statutorily pr[e]scribed duties to probation and parole offices
and is required to communicate any conditions of probation or parole as a prerequisite to
violating any such condition.” Koger, 

. In making this new
pronouncement of law, the lower court expressly cited Foster’s emphasized statement
that only a “court” can impose such conditions. 

 citing Foster, 214 A.3d at 1244 n.5
(emphasis in original). After its reargument petition was denied, the Commonwealth
sought further review before this Court, arguing the Superior Court improperly expanded
Foster and “ignored or misapplied statutes governing parole supervision[.]” Petition for
Allowance of Appeal at 9. Notably, the Commonwealth alleged the lower court wrongly
held the power to impose parole conditions “could not be delegated by the sentencing
court to the probation department.” Id. at 11. Likewise, in its brief before this Court, the
Commonwealth continues to argue the Superior Court’s holding that a court must specify
the conditions of parole “does not exist in Foster or anywhere else in the law” and, in fact,
“is contradicted by a series of statutes that specifically grant authority to parole agents to
specify conditions of parole.” Commonwealth’s Brief at 18.
Given all this, we reject the concurrence’s portrayal of our decision as resolving the
delegation issue “sua sponte.” Concurring Opinion at 9 n.4. Moreover, while the
concurrence perceives “no essential connection between the question granted for review
and the [d]elegation [i]ssue,” id. at 9, in our respectful view, the connection is manifest.
The Superior Court decided the delegation issue, citing Foster, and we granted the



                                      [J-60-2022] - 15
       Appellee’s arguments do not convince us otherwise. He first argues we should

dismiss this case as moot. According to him, the “case is moot because the parole

sentence is over, having been fully served, and the Commonwealth cannot be given any

effective relief if it prevails.” Appellee’s Brief at 9. We disagree. In rejecting the flip side

of this argument in Foster — there, the Commonwealth claimed Foster’s appeal was moot

because he had finished serving his probation — we explained a “case is moot when

facts that arise after the initiation of the case leave a litigant without a stake in the outcome

of the matter.” Foster, 214 A.3d at 1246 (citation omitted). However, we determined “the

impact of a revocation of probation goes beyond the resentencing decision.” Id. (citation

omitted). Most significantly, we described how “[i]f the defendant is convicted of another

crime or has a future revocation . . . proceeding, a past [ ] revocation is something that

courts deciding these questions would consider in determining whether [supervised

release] is an appropriate sentence.” Id. (citations omitted). We see no reason why this

interest, which was sufficient to shield Foster’s claim from a mootness challenge, should

apply any less fully to the Commonwealth here. We therefore reject the suggestion of

mootness.

       On the merits, appellee argues that, “[a]s with probation conditions, the judge has

the sole statutory authority to impose conditions governing parole where a county parole

sentence is imposed.” Appellee’s Brief at 21. “That authority,” he continues, “is non-

delegable.” Id. The only support appellee supplies for this proposition beyond what the

Commonwealth’s petition for allowance of appeal to consider broadly whether the
Superior Court “err[ed] in expanding” that decision. Koger, 276 A.3d at 202. Resolving
that issue necessarily requires that we resolve the delegation issue, which the
Commonwealth has raised at every step since the Superior Court interposed its new rule.
Accordingly, we do not share the concurrence’s cramped view of the issue before us.
See Pa.R.A.P. 2116(a) (“The statement [of the questions involved in a brief] will be
deemed to include every subsidiary question fairly comprised therein.”); Pa.R.A.P.
1115(a)(4) (“The statement of questions presented [in a petition for allowance of appeal]
will be deemed to include every subsidiary question fairly comprised therein.”).


                                       [J-60-2022] - 16
Superior Court stated, which we have already rejected, is our decision in Elliott. Appellee

seizes on language in that case indicating the authority to impose probation conditions

lies “solely with the trial courts,” Elliott, 

, and he submits the same should

be true of parole conditions. We are unpersuaded. Elliott, like Foster, concerned only

probation and was resolved on a statutory analysis of Section 9754 and other statutes,

none of which apply to this county parole case. Put simply, in the same way Foster does

not speak to the present issue, neither does Elliott.

       We do, however, find some purchase in one of appellee’s arguments which bears

brief discussion. Notably, he contends the “Commonwealth’s argument that the Parole

Board, with no jurisdiction, should have imposed the conditions of parole has no legal

support.” Appellee’s Brief at 7 (emphasis added). In this respect, appellee refers to an

argument by the Commonwealth which, although not entirely clear or explicit, seems to

imply the state Parole Board (as opposed to county probation officers) may also have

authority in county parole cases to provide “general rules of parole outside that of the

court.” Commonwealth’s Brief at 20. We agree with appellee this is inaccurate.

       Unlike with county parole cases, the Prisons and Parole Code, 61 Pa.C.S. §§101-

7301, contains far more detailed procedures regarding state parole.11 For example,

Section 6141 permits the Board to “make general rules for the conduct and supervision

of offenders and may, in particular cases, as it deems necessary to effectuate the purpose

of parole, prescribe special regulations for particular persons.”       61 Pa.C.S. §6141.

Similarly, under Section 6132, the Board is empowered to “establish special conditions of


11In 2021, the General Assembly enacted the 2021 Pa. Legis. Serv. Act 2021-59 (S.B.
411), which included numerous amendments to the statutes controlling parole. Unless
otherwise noted, all references herein to any statute found within the Prisons and Parole
Code are to the current versions, though we recognize these statutes (many of which
have simply been relocated or minimally altered) were not in place when appellee’s parole
was initially imposed.


                                      [J-60-2022] - 17
supervision for paroled offenders . . . based on the risk presented by and the rehabilitative

needs of the offender.” 61 Pa.C.S. §6132(a)(3). As well, “conditions of supervision” are

broadly defined under Section 6101 as “[a]ny terms or conditions of the offender’s

supervision, whether imposed by the court, the department or an agent, or promulgated

by the board as a regulation[.]” 61 Pa.C.S. §6101. The Commonwealth highlights these

statutes and argues, “should the Koger decision stand and require special conditions of

parole to also be imposed only by the court at sentencing, the parolee, the supervisory

authorities (be it county parole agents or state parole agents), and the public will be at a

disadvantage.” Commonwealth’s Brief at 21-22.

       Where the Commonwealth’s argument goes awry is in its belief that this case is

one over which the state Parole Board had any authority. It did not. As appellee rightly

notes, because his sentence involved a maximum sentence of less than two years, the

sentencing judge was the one with jurisdiction over his parole. See Appellee’s Brief at 6-

7, citing 42 Pa.C.S. §9775 (where sentencing court grants county parole, “parole shall be

without supervision by the board”); see also 61 Pa.C.S. 6132(a)(2)(ii) (“the powers and

duties conferred by this section shall not extend to persons sentenced for a maximum

period of less than two years and shall not extend to those persons committed to county

confinement within the jurisdiction of the court”). Previously, Section 6132 contained an

exception to this rule, allowing a 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[,]” but the

General Assembly eliminated this exception in 2021. 61 Pa.C.S. §6132(a)(2)(i) (deleted

by 2021, June 30, Pub. L. 260, No. 59, §18). Regardless, though, the trial court’s

sentencing orders here unmistakably referred appellee’s parole supervision to the county

probation office, and there was no “special order” directing supervision by the state Parole




                                      [J-60-2022] - 18
Board.     Thus, to the extent the Commonwealth’s argument could be construed as

implying the Parole Board would have been permitted to act here in addition to the county

probation department, we disagree with that much.

         Nevertheless, there is no dispute the parole conditions appellee violated were

imposed by the county probation office rather than the state Parole Board. As explained

above at length, there was nothing improper about that, and the Superior Court erred in

concluding otherwise. We therefore reverse its decision in that respect and remand for

further proceedings consistent with this opinion.12

         Chief Justice Todd and Justices Wecht, Mundy and Brobson join the opinion.

         Justice Donohue files a concurring opinion.




12 By sua sponte injecting Foster into appellee’s sufficiency-related parole challenge, the
Superior Court avoided any need to address appellee’s actual argument. Although we
have strong doubts about whether the claim has been preserved at either the trial level,
see supra at 5 n.5 & 7, or the appellate level, see, e.g., Wirth v. Commonwealth, 

 (Pa. 2014) (“[O]ur rules of appellate procedure are explicit that the argument
contained within a brief must contain ‘such discussion and citation of authorities as are
deemed pertinent.’”), quoting Pa.R.A.P. 2119(a), this Court’s preferred course in this type
of situation is ordinarily a remand. See, e.g., Commonwealth v. Raboin, 

,
424 (Pa. 2021) (after holding evidence inadmissible under one rule, remanding to the
Superior Court because “the question of its admissibility under [a different rule] remain[ed]
unanswered” and was beyond our allocatur grant); see also Christian Legal Soc. Chapter
of the Univ. of Cali., Hastings Coll. of the Law v. Martinez, 

, 697 n.28 (2010)
(“When the lower courts have failed to address an argument that deserved their attention,
our usual practice is to remand for further consideration, not to seize the opportunity to
decide the question ourselves.”). We see no compelling reason to depart from this usual
practice here.


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